Restructure on maternity leave: ask the expert

I am currently on maternity leave and the organisation that I work for has notified me that there is a planned restructure and my post will be consumed within another role which is larger and has a greater level of pay. All the managers on the current restructure had a meeting with the senior managers and HR and the new structure was disclosed. We were asked to ‘express interest’ in any of the new posts for which we felt we had appropriate experience. I had a meeting with the senior managers and said that I felt to be at disadvantage due to being on maternity leave, but my only option at this stage was to either express interest or not. I have done so and have now been invited for a competitive interview. I understand that only following the restructure will my current post be at risk of redundancy. Please can anyone tell me what I should do. I have sought advice and it has been contradictory. On one hand, I am being told that I should be ‘offered’ a post in the new structure and, on another, I have been told that I only have ‘rights’ to suitable alternative employment following the restructure process.

Thank you for your question. Under employment law an organisation can dismiss an employee who is on maternity leave by reason of redundancy. However, to do so they first need to show that there was no suitable alternative position for that employee.

If your organisation fails to fulfil its obligations to you as an employee on maternity leave, it may open itself up to (1) an unfair dismissal claim or (2) a pregnancy or maternity discrimination claim. You state that your organisation is in the process of a re-organisation and that no-one has yet been made redundant but are at the stage of interviewing for the new roles.

Returning from maternity leave
Generally after coming back from Ordinary Maternity Leave, you are entitled to return to the ‘same job’ in which you were employed before your absence. The terms of employment must be the same or not less favourable than they would have been if you had not been absent (Reg. 18A(1)(b) MPL Regulations). When returning from Additional Maternity Leave, there is slightly more flexibility for an employer and you are entitled to return to either the same job or a different job which is both suitable for you and appropriate in the circumstances (Reg. 18(2) MPL Regulations).

The general position set out above is slightly altered when a re-structure and redundancy situation has arisen, as it is often not reasonably practicable for a woman returning from maternity leave to go back to the same job (as such a job may not exist). Therefore, the employer only needs to offer you a new position if there is a suitable vacancy available.

Suitable alternative vacancy
Following a re-structure, a woman returning from maternity leave should be offered a suitable alternative vacancy at the organisation if it exists, and the role should start immediately after the existing contract ends (regulation 10, MPL Regulations).

A vacancy will only qualify as a suitable alternative vacancy where:-

– The work to be done is both suitable and appropriate for her in the circumstances (Reg. 10(3)(a) MPL Regulations); and
– The capacity and place in which she will be employed, and the other terms and conditions of your employment, are no less favourable than if she had continued to be employed in her old job (Reg. 10(3)(b), MPL Regulations).

In recent case law (Simpson v Endsleigh Insurance Services Ltd and others UKEAT/0544/09), the Employment Appeal Tribunal held that to qualify as a suitable alternative vacancy the new position needs to satisfy both of the above limbs. Therefore, if all of the roles that are available following the restructure are based in Nottingham rather than London, an employer is not obliged to consider you for the position as the location of the role would be less favourable than your old role.

Having said that, if no other alternative is available it would be best practice to allow you to apply for other roles even if they might not be “suitable”. Your email mentions that you have been asked to interview for a position which is ‘larger’ and ‘has a greater level of pay’. My concerns here are that this sounds like a higher level job than the one you previously held. If so, your organisation may well argue that this is not a suitable alternative vacancy for you and so they do not need to offer it to you. Instead their approach of interviewing you with others would be the right approach. This is unless the ‘higher level’ role has deliberately been created to ensure you will not get that role.

I suggest that you look around the re-structured roles and see if there are any roles that would be similar to your old job. If so, you will certainly have priority to those positions over other employees who are also at risk of redundancy. This is a rare example of lawful positive discrimination. If you can show that there is a position which is a suitable alternative vacancy, and your employer does not comply with their obligations, you will have a claim for automatically unfair dismissal under section 99 of ERA 1996 (regulation 20(1), MPL Regulations) and, arguably, pregnancy and maternity discrimination which I have set out below.

You should also remember that if your employer does offer you a suitable alternative vacancy and you refuse, any consequential dismissal for redundancy is likely to be fair. Furthermore, if you unreasonably refuse the offer, you will also lose your right to a redundancy payment.

Redundancy
If your employer cannot offer a suitable alternative vacancy, your employer can include you in the redundancy pool, subject to the usual principles of fair and non-discriminatory selection. Unfair dismissal would be automatically unfair for your organisation to select you for redundancy if their reason (or principal reason) for selecting you is connected to your statutory maternity leave. It is also automatically unfair for your organisation to select you for redundancy during Ordinary Maternity Leave or Additional Maternity Leave for a reason connected to the fact that you have given birth. However, if their reason has nothing to do with your maternity leave this would not succeed.

Maternity discrimination
If you are not consulted or not adequately consulted about the restructure and potential redundancy because you are on maternity leave an employment tribunal may find that you have suffered a detriment and have therefore been discriminated against. A woman is protected against being subjected to a detriment for a reason connected to her statutory maternity leave.

Conclusion
The organisation can restructure and make you redundant but if they do your employer will importantly need to show two things:

1. that there is a genuine redundancy situation and the higher level role needed to be created;
2. that the process followed was generally fair;
3. that there was NO suitable alternative vacancy available and if there is you should be given priority; and
4. that the reason that YOU were chosen for redundancy is NOT connected to your pregnancy, childbirth or maternity leave.

I hope you find this information of assistance.

Charlotte Mepham helped in the preparation of this answer.




Comments [8]

  • Sammie says:

    Hi,
    I’m currently on maternity leave and a new job has arisen at work, should I be notified about this or not?

    Thanks

  • Anonymous says:

    I’m currently on maternity leave and My work is going for a restructure. I was eventually given the chance to apply for a promoted post. So far I’ve not heard anything but the staff who went for the same job as me have been informed either way. Do I grounds to complain? Also should I need to apply for my own post.

  • Anonymous says:

    I worked for my company for 5 years before going on maternity leave. The company hired a man to cover my role. On my return, my role had been split into about 3 people's jobs, gaining my manager's post 2 additional reports. They said this was due to increased workload. They also put my maternity cover on a permanent contract. I worked alongside him for 2 years- we had the same responsibilities, pay-grade and experience, although I was part time and he kept line management responsibilities (I was 'encouraged' to give these up as I was part time). I am currently on maternity leave for a second time. The organisation now needs to make lots of redundancies and my line manager has told me that 'my post' is the most at risk in the department because they did not cover my second maternity leave. Are they justified in saying that 'my post' should be the one to go or should I be considered alongside the man? would I have a case for tribunal / settlement?

    Editor: You can be made redundant while on maternity leave, but the criteria for redundancies should be fair and it would be discriminatory to single you out for redundancy simply due to the fact that you have taken maternity leave.

  • Anonymous says:

    I am on maternity leave, I have been for 18 weeks. I have worked for my company for 17 months. I was called in today for a consultation as my job may become redundant. I was told they are expanding my department within a department store, making my job of 16 hours and two others on the department of 12 hours and 8 hours redundant. Then they will be creating a 10 hour position and 30 hour position which I was told we can all be interviewed for. The 30 hour is more senior and will be as I understand managerial but the 10 hour will be the same role as I was doing. Am I misunderstood but Im sure I have more rights and should be automatically offered the 10 hour position without interview. They mentioned I may be entitled to some redundancy despite not being with them two years. Where do I stand with this they want the positions filled by end of February.

    Editor: See https://www.workingmums.co.uk/advice-and-support/all/7328578/called-for-interview-on-maternity-leave-ask-the-expert.thtml

  • Anonymous says:

    I'm on maternity leave and my employers have had a restructure. My office has moved location & is downsizing so now there are too many of us that do the same job, we have been told we all have to interview to secure a position in the new office &the unsuccessful staff will be offered a position in a different dept. can they make me interview for my own job whilst I'm on mat leave? (I'm due to return in one month but may have to interview before my mat leave finishes)

    Editor: See the following advice - https://www.workingmums.co.uk/advice-and-support/all/7328578/called-for-interview-on-maternity-leave-ask-the-expert.thtml

  • Anonymous says:

    i was interviewed by an international organisation. I passed the written and oral test both. at the end they told me I will wait because they are on restructuring. what is that suppost to mean?

    Editor: The organisation will be going through a process of reviewing all roles. You could get in touch with their HR to find out more about the time frame and what it might mean for you, for instance, is there a chance the role you applied for will no longer exist.

  • Anonymous says:

    I am on maternity leave and my department are going through a restructure and me and my team of 12 have been placed at risk of redundancy. However, we have been advised that there are 4 places for alternate roles which we can choose to request or take voluntary redundancy. Will I take precedence over my other employees with me being on maternity leave, even if I want to go back part time as my previous hours were full time?

    Editor: Could you send your question through to our legal experts via the Advice & Support/Q & A page box as they may need supporting information to inform you. Being on maternity leave you can be subject to redundancy just as other employees are, but you do have certain rights, depending on what stage of maternity you are in.


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