My role has been put at risk which is part of a voluntary redundancy programme. However, my role will completely disappear in the UK as jobs move abroad and my opportunities are almost non-existent in the business. I have notified in the opening period that I will be taking the ‘early bird’ (to get an incentivised package). My date of termination is not defined but it is understood that I can remain until December. I am hoping to find a external role before and leave the company before hopefully. I returned to work from a maternity leave in October 2016 . My company’s Maternity Policy is structured to reward return to work via two bonuses: the first one after one year return to work anniversary, and the second one after the second year return to work anniversary. My second return to work bonus (October 2018) is conditional to me being still with the company as this date. I have enquired informally with my HR business partner about this bonus and the possibility to get it in the case of an earlier leave. I have been told that it will apply only if I am an employee at the date. I understand the need to apply policies, but I feel that due to the current circumstances (I am not choosing to lose my job ) the lack of understanding and the response is inadequate. I would like to obtain a derogatory clause to be able to get this bonus exceptionally at any date (providing I am leaving prior October 2018). Can I argue this legally?
You confirm that you returned from Maternity Leave in October 2016 and, under normal circumstances, you would receive a Return to Work Payment of up to four weeks’ salary upon achieving one year’s continuous service upon return from Maternity Leave and up to six weeks’ salary upon achieving two years’ continuous service after return from Maternity Leave.
However, you are involved in a redundancy situation and given the lack of opportunities for you in the UK, you have indicated that you would like to be considered for voluntary redundancy as this would entitle you to an enhanced redundancy package. You will be able to stay in the business until December 2018 at the latest and you are seeking alternative employment both internally and externally.
You have been informed that you would not be entitled to receive the second of the two Return to Work Payments if you leave earlier than the date it falls due in October 2018. Indeed the Policy confirms that no payment will be made if the employee is under notice to leave the Company. Understandably, you are concerned about this given that the only reason you would leave is due to a redundancy situation.
Although the policy is clear in its wording, and you accept the importance of adhering to such policies, for the sake of fairness and supporting women in the workplace you feel that a refusal to pay this sum would be contrary to the Company’s position in this regard.
In terms of how to deal with this issue with your employer, if you have not been able to reach an agreement informally with HR, then you may wish to make a formal approach to ask for agreement to honour this policy in the event that you leave the business before October 2018.
Given that you will be receiving an enhanced redundancy payment from your employer, this may be subject to you signing a Settlement Agreement and agreeing not to bring any claim regarding the termination of your employment in the Employment Tribunal. If this is the case, you may wish to initially approach your employer on a “without prejudice” basis, either in writing or within a meeting, to ask that the Return to Work Payment be added to any enhanced redundancy payment already agreed for the loss of your employment. Your employer may not wish to set a precedent in respect of something which would be prohibited by its policy, and thus your employer may be more open to discussing this on a “without prejudice” basis with you in an effort to reach an agreement without setting a precedent.
If you would prefer to have a more open discussion from the outset, or if any without prejudice discussions do not bring about the required result, then you may wish to write formally to your employer and set out your concerns and request in writing, perhaps even by way of a grievance if you feel that this would be more appropriate. Although the policy is clear in this regard, your employer may be encouraged to make an exception in circumstances where the termination of your employment is not through any choice of yours; i.e. but for the redundancy situation, you would receive the Return to Work Payment.
Clearly if you are still in your role at October 2018 then this becomes irrelevant, but I understand your keenness to resolve the issue now and have some clarity.
*Lucy Flynn has assisted in answering this question.