Should my redundancy be paid on my contracted hours if I am on a phased return?

I understand that you returned to work earlier this year after nine months off on maternity leave and that upon your return you were not given any work to do.  You were then told that you were at risk of redundancy and that it was a pool of one as it is only you who holds your job title.  Your employer tried to offer you a position doing the same work as your duties prior to maternity leave but on a significant pay reduction prior to entering the consultation period and you have since been told that there has been a restructure and your work has been allocated to other employees. The way this was handled caused you significant stress and as a result you felt unable to stay with the company and took redundancy prior to the consultation process being completed as you were dreading going to work.

However, as you were on a phased return your company is paying your redundancy payment at based on you working four days a week despite being on a full time contract. You would like clarification as to whether this is correct.

Dealing first with whether your employer can keep on your maternity cover after you return to work, the first thing to point out is that when you return to work after a period of Maternity Leave which is 26 weeks or less, you are entitled to return to the job in which you were employed before your absence with your seniority, pension rights and similar rights as they would have been had you not gone on ML and on terms and conditions no less favourable than those which would have been applied had you not been absent; i.e. you have the right to return to exactly the same job you left and to be treated as if you had never been absent.  You should be paid the same rate of pay that would have been payable had you not been on ML and this includes any pay increases that would have been awarded during ML.  When you return to work after a period of ML which is longer than 26 weeks then you have the same rights, except that if reinstatement in your old job is not reasonably practicable then your employer can offer you another job which is both suitable for you and appropriate for you to do in the circumstances.

If the job still exists, and you have not been given this because of your pregnancy or maternity leave, this would be considered as discriminatory. Pregnancy and maternity discrimination is when your employer treats you unfairly because you’re pregnant or because you’ve recently had a baby, and you suffer a disadvantage as a result – for example, if you’re dismissed.

Whilst you have now accepted redundancy, you could seek a claim for unfair dismissal, although a thorough investigation of your circumstances would need to take place before this could be confirmed.   You should also be aware that any claim for unfair dismissal must be brought within three months of the date of the dismissal and although this three month time limit is extended by any period of ACAS conciliation, which potential claimants must engage in before bringing a claim, you must commence ACAS conciliation within the three-month time limit to still be in time.

In terms of your redundancy payment, statutory redundancy pay is calculated by reference to a week’s pay on the “calculation date”, which is generally the date at which notice is given.

Unless there is a contractual entitlement to an enhanced redundancy payment then workers are entitled to either work or be paid for their contractual notice period and also to receive a statutory redundancy payment as compensation for the loss of their employment.  Statutory redundancy pay is calculated as follows; –

• Half a week’s pay for each complete year of service below the age of 22;
• One week’s pay for each complete year of service between the ages of 22 and 41; and
• one and a half week’s pay for any complete years worked over the age of 41.

A week’s pay is currently capped at £508 and should be calculated based on your contractual salary at the time of the redundancy. As you were at that time on a phased return, i.e. a temporary measure to ease you back into the workplace after a period of maternity leave, you have a strong argument to say that basing your redundancy pay on this temporarily reduced salary is discriminatory on the grounds of pregnancy, maternity and sex and also in breach of your statutory rights.

You should take some legal advice as to the next step in this regard and I would also advise contacting ACAS to lodge a request for conciliation to ensure you protect your position in relation to your employment rights.

*Lucy Flynn assisted in answering this question.

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