Under threat of redundancy on maternity leave: ask the expert

I am currently 35 weeks pregnant and have been put ‘at risk’ by my place of work. We are currently going through a consultation period on new job roles. There are 12 of us under threat all considering applying for 4 new roles, although these roles are extremely similar the view of senior management is that they are significantly different.
My problem is that I am soon going on maternity leave. Where do I legally stand?
Some questions I would like answering are:
1) Would my 3 month notice period commence from the end of the consultation period and run into my maternity leave or do they have to be separate?
2) When calculating my redundancy pay would they have to consider my maternity leave period as continued service? They are currently arguing that because my notice would end before my two-year qualifying period and that I would not be entitled to anything. My argument is that any payments due to me should be worked out over the entire maternity leave period i.e Notice period for 3 months, SMP for 39 weeks, holiday accrued and also length of service during that time too.
3) If they are informing me that my job is redundant just before I go on Maternity leave, does that mean that I am not covered by the ‘suitable alternative job’ protection and am simply redundant?
4) If the answer to the above is ‘yes’ are they discriminating against me by me not being able to attend an interview as I would be on maternity leave?
I would really appreciate any help or advice you can give me, especially on my rights on returning to a job and redundancy payments.

You mention that you are due to commence maternity leave on 11th January 2011 yet your consultation period ends on 22nd December 2010.  From a legal perspective, an employee is of protected status if they are on maternity leave at the time when the redundancy is determined.  It would appear from the dates you have given me that you will therefore not be of protected status pursuant to the Maternity and Parental Leave Regulations as at the time the redundancy is determined.   In relation to your questions, I would respond as follows:
1.    You cannot receive remuneration whilst in receipt of SMP.  Therefore, it would be in your best interests to try and ascertain whether your employer will agree to pay you a lump sum in lieu of your notice entitlement.  You should also check your contract of employment so as to ascertain whether you are entitled to payment in lieu of notice.
2.    An employer may pay an employee their full entitlement to SMP as a lump sum so continuity of service would not extend to the end of your maternity leave.
3.    I have already dealt with this point see above.
4.    This is a tricky subject because if there are jobs for which you can apply then it questions whether there is a genuine redundancy situation.  It is not clear why your employer is not undergoing interviews for redeployment during the consultation period.  Subject to further information, you may have a claim for discrimination.  We offer a 30 minute initial free consultation by telephone and I would urge you to consider using this so that I can assess your claim in further detail. Please contact me via our website www.babylaw.co.uk.

Joanna Robson is an employment law solicitor specialising in maternity related employment law matters. She is also the founder of Babylaw, set up three years’ ago to get the message out there to individuals who are having problems or difficulties at work because of their pregnancy or maternity leave status.  Joanna has previously worked in private practice, acting for both claimants and respondents.

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