HELP please - redundancy consultation period

[kai2]

Hello,

 

I was selected for redundancy just before going on my maternity leave. My notice period is 3 months and I am not sure what I am entitled to and don't understand the consultation period very well. My meeting is on Tuesday and I am worried that I am going to miss my chance and not ask the wright questions. If anyone could help I would like to write you an email explaining all the details as it is a bit complicated. Thanks!

[elche]

Hi Kai

 

Could you tell us how long you worked there please?

 

Also when you say, 'I was selected for red just before mat leave...', do you mean you were put at risk of red at this point OR given formal notification that you would be made redundant at this point?

 

Che

[Guest Old_andrew2018]

It would be better if issues could be discussed openly in the forum, as it is usful for others in similar situations, suppose I gave you the wrong advice / information via a pm, there would not be an opportunity for this to be corrected.

I'm not suggesting that you should supply information that could identify you.

 

Regards

 

Andy

Edited April 26, 2009 by old_andrew2007
typo

[kai2]

Thanks for your replies - here are some details in short:

 

I worked for the company for almost 5 years now. I am still at risk only but to be honest think I will be the one to go.

 

meeting 1 - Those selected at risk called into the meeting and told that the company is cutting costs and that the selection was not 'performance based' - (Performance was one of the SC later used in one of the letters I received)

 

meeting 2 (2 days later) - meeting with hr in which told that scoring system will be used. I think this was my consultation meeting although it wasn't clear at the time.

 

4 days later - received a letter which states that some selection has already taken place and that I scored 'low', repeating that my job is at risk.

 

Next meeting due on Tuesday.

 

How many 'consultation' meetings should I have?

None of the meetings were minuted.

I asked to bring my maternity leave forward, it is due to start in 2 weeks although I haven't heard back and have nothing in writting re my maternity leave and don't know if I am entitled to it at all, I am on 3 months notice.

 

Thank you very much for your help!

[kernowayr]

At least you have had something in writing confirming your job is "at risk" - I haven't even had that much so far - and would therefore question whether being aware of the impending move since the outsight would give the employer a "get out" clause re. failure to serve proper notice on me come moving day.

 

As for your own situation I cannot see why they need to have more than 2 meetings with you - one to say you'e "at risk" and what the criteria for selection will/is likely to be - i.e. points based, and the other to confirm/deny whether you have been selected and why (selecting you for reasons that you are pregnant but pretending it is for something else such as performance doesn't seem particularly fair and thus unenforceable by your employet without financial penalty to be paid over to you on discrimination grounds). That's my view anyway, for what's it worth. I am no expert however.

[elche]

Well firstly, in true Blue Peter Style, here is some general information on Red that I prepared earlier:

 

REDUNDNACY

 

Redundancy is one of the six potential fair reasons to dismiss you. If you bring a claim for unfair dismissal and your employer can show that there was:

 

a) A genuine redundancy situation; and

b) A fair procedure was followed; and

c) No alternative employment was available; then you will lose your unfair dismissal claim.

 

A GENUINE REDUNDANCY SITUATION

 

The Employment Rights Act defines redundancy situations. Your employer cannot just ‘label’ your dismissal a redundancy without showing that a ‘real’ redundancy situation existed.

 

Remember that it is the role and not the person that is made redundant. Broadly speaking a genuine redundancy situation will exist if:

 

• The entire business closes

• The part of the business / place of work where your role was based is closing

• Your role disappears

• Fewer people are needed or will be needed in the particular role

 

The above will be the ‘first limb’ of your employer’s defence in arguing that you were made redundant. An Employment Tribunal will expect the employer to be able to produce some objective evidence to support their assertion that they were suffering one of the above situations.

 

B) A FAIR PROCEDURE

 

You may have a specified redundancy procedure outlined in your contract or if your employer recognises a union, via a Collective Agreement. If such agreements do exist, then your employer should ensure they are followed during any redundancy situation.

 

Assuming that no such agreements were in place, then integral to a fair procedure will be consultation between you and employer BEFORE a definite decision has been made to dismiss.

 

If more than 20 employees are to be made redundant, then statutory rules exist regarding consultation You should seek specialist advice if this applied to you.

 

Assuming that less than 20 employees were made redundant, then a ‘fair’ consultation should have included:

 

• Ways to avoid the compulsory redundancies altogether e.g. seeking volunteers, cutting costs, ceasing overtime etc

• Ways to reduce the numbers of people to be made redundant

• Mitigating the consequences

• If a method of selection is to be used (i.e. redundancy from ‘pools’) then you should have been consulted on the proposed scoring methods and given an opportunity to comment on your scores.

 

Consultation must be meaningful. This means a genuine two-way dialogue between employers and employees. Thus, if in a consultation meeting you suggest an overtime ban and the employer unreasonable refuses to consider that then it could make the redundancy process unfair.

 

C) ALTERNATIVE EMPLOYMENT

 

As part of the overall test of ‘reasonableness’ an employer should always try to avoid making employees compulsorily redundant. Thus the employer is obliged to look on behalf of every redundant employee and see if there is alternative employment in the same company or in associated companies e.g. those within the same group.

 

There is a special category of ‘Suitable Alternative Employment’ which if you unreasonably refuse could lead to you losing your right to a redundancy payment. Seek specialist advice if your employer is arguing that an offer of employment is ‘Suitable Alternative Employment’.

 

In your case, I would say that you could argue that consultation was not meaningful for the follwoing reasons:

 

1) If the meetings were not minuted how can the employer show that all nescessary issues were discussed.

 

2) Two days between meetings is gereally too soon - I advise a week is best, although am happy with Monday and Friday at a push

 

3) You may not have been fully consulted on the proposed SC, and how the scores were evaluated.

 

However, the caveat to all the above, is that you do have further meetings planned, and consultation my well be more in depth at the future meetings.

 

Che

[kai2]

Che - Thank you very much for your reply!

[kai2]

Che,

 

I know that women on maternity leave should not go through the selection process as there is already a job available and should be offered this first. In my case is a bit unclear as the 'consulstation process has started before my maternity leave but there is a chance that it will end and that i will be made redundant while on maternity leave?

[elche]

Che,

 

I know that women on maternity leave should not go through the selection process as there is already a job available and should be offered this first. In my case is a bit unclear as the 'consulstation process has started before my maternity leave but there is a chance that it will end and that i will be made redundant while on maternity leave?

 

A woman on mat leave can be made redundant, so therefore could be put through a selection process.

 

You are right though, that if alternative employment exists which is appropriate, then the employee on mat leave who was made red should be offered this role in preference to any other employees made red.

 

Che

[kai2]

Che,

there are 3 exactly the same roles in my team that are going to be reduced to 1 only and we are going through the selection process. I think that I would have to be offered this job if I was on maternity leave but what confuses me is that I am not on maternity leave yet now that this selection is taking place. The thing is, I may start my maternity leave during this selection process !? Do you think I should be offered the job or go through this process? I've been looking for an anser to this question for a while and nobody seems to know, I've been given a lot of different opinions.. Thanks!

[elche]

It will all depend on the effective date upon which your contract is terminated on grounds of red.

 

If this date is when you are on mat leave then yes you shouuld be offered this, if not then you are merely an ordinary employee, albeit a pregnant one.

 

As you are meant to give (from memory) eight weeks notice of your start date of mat leave your employer will be under no obligation to bring this forward.

 

BUT - and i need to check the rules on this you may be able to bring the mat leave fwd by going off work sick with a pregnancy related illness, and this can automatically start your mat leave.

 

What is your EWC?

 

Che

[kai2]

Che,

 

Thank you very much for all your help.

 

What is normally the effective date the contract ends? Does this include notice period or the date they decide to end consultation process? Can the employer just end consultation without me attending my meeting (I am on sick leave at the moment) and send the final redundancy letter ?

 

sorry, not sure what EWC is?

[Guest Old_andrew2018]

EWC is Expected Week of Childbirth, here is a link with some additional info

 

Employment law - Maternity and paternity leave - 05/07/2006

 

Andy

[kai2]

due date 6 July.

I thought I needed to give 28 days notice to start my maternity leave, which is what I did but this was only after I was told my job was at risk. (not sure if it makes any difference I decided to bring this forward after this first general meeting).

 

Also, can anyone clarify if the number of jobs is going to be reduced from 3, those on maternity leave should not go trough the selection process but offered one of the jobs first. The law seems to be unclear on this. Is there an 'available' position in this case?

[summer73]

hi there

 

Sorry to hear of your troubles and best of luck. Also sorry to jump in on your thread. I've just registered today and seem to be having trouble starting a new thread. My partner si also having issues with redundancy and I would like to get some advice.

 

How do I go about starting a new thread!!?

[Guest Old_andrew2018]

Hi Summer73,

Welcome to CAG.:grin:

 

To start a new thread, go to the page you want to have a thread, at the top and bottom of the page there is a blue box which says...NEW THREAD. Click on that.

 

You will get an empty box up, Give your self a title, ie...Summer73-V- (xxxx thats it your off.

 

Please have a read of the link below. It has everything you will need to know to help you find your way around this site.

 

"How do I...?" A Dummies' Guide to this Forum

 

Also please have a really good read around the site. As soon as you are ready, make a post and some one will be around to help you. :grin:

 

Andy

[Liz Southern]

Hi Kai2 and everyone

 

I've entered the conversation because Kai2 sent me a PM.

 

May I please know, Kai2, the exact chronological timeline.

 

Did you receive notification in writing from your employer that your position had been selected for possible redundancy BEFORE you told your employer (in writing, I hope) that you were pregnant?

 

Or, had you given your employer your MATB1 BEFORE you received a 'possible redundancy' letter?

 

Or, had you told a member of the management in your firm (or if someone else, who?) that you were pregnant and then received your 'possible redundancy' letter? If this was the case, what was the time elapsed between your telling someone at work and you receiving your 'possible redundancy' letter?

 

Regards

Liz

[kai2]

Liz,

 

thank you v much for your reply.

I have notified my employer about my pregnancy long time ago and gave them my MAT1 long before I had a meeting in which I was told my job was at risk.

meeting 1 - Those selected at risk called into the meeting and told that the company is cutting costsetc, etc and that our jobs are at risk.

 

meeting 2 (2 days later) - very short and informal meeting with hr in which told that scoring system will be used and the same repeatd from the first meeting. I think this was my consultation meeting although it wasn't clear at the time. the meeting was not minuted.

4 days later - received a letter which states that some selection has already taken place and that I scored 'low', repeating that my job is at risk and giving the time for the next meeting.

[Liz Southern]

Liz,

 

I have notified my employer about my pregnancy long time ago and gave them my MAT1 long before I had a meeting in which I was told my job was at risk.

 

Hi Kai2,

Firstly, please keep your mesages to me on the forum, so that everybody can benefit by learning from the content. Except if you need to ask me something that will mean you will definitely identify yourslf. It is impossible to tell who you are, and even if your employer has an idea, what can they do about it? They have no proof and they can't stop you talking. They're already making you redundant. What else can they do to you?

 

Now, in my opinion, you can forget everything else. If your employer had your MATB1 as you describe above, you are not eligible for selection for redundancy. Your job can be selected for redundancy but your employer must keep you, the pregnant lady, employed, on the same terms and conditions as you currently are.

 

No ifs, no buts. If your employer proceeds with putting you, the person, through redundancy, you have a claim for unfair dismissal and sex discrimination. That's the news that will have you jumping up and down with joy.

 

Now, let's get back to the real world. I'm going to ask you how many employees is your employer making redundant out of how many total employees in your firm? Really important question. As soon as you've given me that, I will finish my reply.

Regards

Liz

[kai2]

Thanks Liz.

 

I assume this is only in the case where there is a selection process (which there is in my case), or when there are similar jobs available.

I had so many different opinions on this, including ACAS helpline, employment lawyers, union rep and few other HR people. Most say that pregnant women have this special right but say that they still can lose in the pool and if there are no OTHER roles that are suitable, the one that they are competing for is not in fact 'available'. Few others (like you) agree that while on maternity leave you should not be going through the selection process with other people in your team but offered the job as a priority. I even had 2 employment lawyers stating that if you are going through the selection process, doesn't mean that there is a job available (unless the role changes or they ask people to reapply etc) so they insist that since there are no available position, women on maternity leave need to go through the same process as everyone else and therefore not kept in their roles automatically but potentially made redundant if their scores are not high enough.

I am aware of Regulation 10 of Maternity and Parental etc Regulations 1999 which states that the woman on maternity leave (please note that this does not include pregnant women) can jump the queue to get any available vacancy that is suitable. The questions:

1. is there an available vacancy in this case? as I said, some argue that there isn't

2. am i going to be on maternity leave at the time my redundancy becomes effective??

Liz, I realise that in your opinion even pregnant ladies have this special right and I really hope you are right!

Thanks very much for your time!

[kai2]

Sorry,forgot to say - only about 10 people are being made redundant out of 150.

[Liz Southern]

Hi Kai2

 

I hate to say this, but don't rely on solicitors. They will feed you bits of the law, because they want you to stay needy, and use their services. And they will want paying!

 

My background is that I am an employer, who has made employees redundant, including a firm with pregnant employees.

 

It looks as though your employer is not going to cease trading for the moment. If he was in talks with his bank and accountant, the redundancies would number 10% - that's the recommended "first wave". Second wave is 25%, etc. However, have you noticed another 5 people leaving in total? If so, it is possible that the first wave has been made up of clever people, or people in the know, who have secret deals with the directors, and then gone out and got another job, and jumped ship. Your HR lady would qualify for this category. She may well have come to an agreement to be counted in the redundancies (to help the firm reach 10% required by the bank) in return for a pay out. This is supposition, remember, on my part. Only you know the exact details of your firm.

 

Your employer needs to show that he is being reasonable. There is no doubt in my mind that you should not have selected. Disregarding that, if you haven't been offered another position, even a more junior one at less favourable terms, your employer is not showing that he is acting reasonably. You have an absolute claim for unfair dismissal and sex discrimination. ACAS are generally useless over the telephone. However, you can take out a grievance with your firm, and then if it is not resolved, go to an Employment Tribunal. At that stage the Employment Tribunal will ask ACAS to be involved in mediation. You will very probably end up with the Tribunal deciding in your favour and giving you an award. BUT,

 

This is the real world part. Are you, as a fat, bumpier every day, sick all day, emotional, pregnant woman - going to want to do this? You need to consider putting yourself and your baby (unborn and after) through the stress. You may win a money award but your job will definitely be gone. ACAS will not recommend to you that you go back to work at your firm, if it is still trading. And your employer does not have to take you back. You need to work out the possibilities as far as money is concerned. Whatever you get as an award could affect your redundancy money, or the other way around.

 

It's not a certainty. Your employer may turn up and fight.

 

Your maternity benefits will be picked up by the Benefits Office, if your firm goes out of business, and you need to be speaking to them to confirm this for your own piece of mind, and confirm the money situation if you are made redundant. No-one else - speak to the Benefits Office. You need to have an appointment with them.

 

Your employer should also be giving you time off to go to job appointments, though in your condition I don't see any employer giving you an interview.

 

Just because the Tribunal decides in your favour, doesn't mean you will get the money without going to court.

 

And most importantly for you (remember I am an employer), in this recession there are many people applying for jobs. When you apply for your next job, do you think an employer will employ you - a new mum, likely to be off work a lot, whose reference from the last employer is just the basic one except for the additional information that you took your last employer to Tribunal?

 

Sorry to be so brutal.

 

Whatever decision you make, I wish you the best of luck.

Regards

Liz

[patdavies]

Just because the Tribunal decides in your favour, doesn't mean you will get the money without going to court.

 

 

You don't need to sue at Court for the award. The ET is a Court in its own right for this purpose.

 

All you may need to do is apply to a Court for enforcement action or a winding up order.

[elche]

You don't need to sue at Court for the award. The ET is a Court in its own right for this purpose.

 

Not quite that simple really PD.

 

Non-payment of ET awards is a massive problem, with the CAB in their excellent report 'Justice Denied' estimating that one in ten succesfull claimant's never see a penny of their awards.

 

Employment Tribunals have no powers to enforce their awards, which must be enforced through bewilderingly complex and costly legal action in the civil courts. However, rogue employers can easily drag out and frustrate such enforcement action so that, for an individual claimant, it becomes inordinately time-consuming and expensive.

I would urge all interested CAGGERS to read the report here:

 

Justice denied

 

If you feel that this is an injustice, and clear loophole in the current ET system, then please contact your MP and let him or her know your thoughts.

 

Che

[elche]

Hi Kai,

 

As regards your questions via PM:

 

1. Do you know if they can do this without me agreeing to it considering they should give me the notice as per my contract (even if they send me home with no work)

 

Technically an employer is in breach of contract if they dismiss you with PILON if you have no PILON clause in your contract. But as the claim is for the notice pay you are paid via PILON, there is effectively nothing you can do about this.

 

2. Consultation seems unfair to me (if they end my employment on Friday) even though everyone else was made redundant earlier but they all had 2 consultation meetings as i was off sick?

 

If consultation was inadequate, then this could be the basis of a claim for unfair dismissal.

 

3. In the case my red becomes effective next week when i am on maternity leave, is it true that in that case I should not have gone through the scoring process and been offered one of the remaining roles in the team - this is something that i found everyone has a different opinion on and i suspect that my employer is rushing this for that reason.

 

No I don't believe this is the case. You must be offered suitable alternative employment (if this exists) if made red during mat leave but this is not necessarily the same as work existing for some employees as they scored higher than you on the selection criteria. This is however, a moot point, and it is hard to be certain on limited facts. You should seek some expert face 2 face advice with a local law centre, cab.

 

Or you could call CLS direct on 0845 345 4 345 as if you qualify for free legal help, you get up to 2 hours with an employment specialist

 

Che