Maternity Leave and redundancy employment tribunal

[sophouse26]

Hi there

Was wondering if anyone with any kind of ET experience could help?

I was made redundant at the end of July - was employed by the local Council.

The funding ended for our project and as a result the whole of our team were up for redundancy.

I was then made redundant during the first week of my maternity leave.

I enterted into the redeployment pool as was everyone else and sent a weekly bulletin of jobs and told to apply for any I fancied. I only ahd a 3 week window and everyone else had 4 weeks as I was the only one going on to maternity.

From what I now understand is that due to part 10 of an act I should've automatically been assigned into a suitable position from when I was on maternity leave. This was not told to me and nether was it an option. I highlighted 2 jobs through redeployment but was made to go to interview ( again I believe I should've had preferential treatment as I was on maternity leave??). It would seem that my employer has breached the law around maternity leave and offering an alternative suitable position.

I have come across a recent case where the claimiant was in exactly the same position as me and took her ocuncil to court and won, thus a preceeding case is there. See Badger v Teford and Wrekin Council for thorough case.

Now my dilemma is , it seems I have a strong case for unfair dismissal. At the time I was unaware of this, HR told me nothin of this and now I am suffering financial hardship. My local council also have a clause which states that anyone made redundant is unable to take up a fresh position within the local authority for a minimum period of 2 years. As I live on an island with few employers , high and seasonal employment, this really hinders my chances of finding another job locally once my maternity ends in April. I may have to move and relocate! Had they followed the correct procedures an offered me alternative employment things would be very different for me now!

The problem is 4 days after I was officially made redundant and 11 days after my maternity leave started I had my daughter via c-section. Iwas really out of action for a number of weeks and also following this suffered with anxiety. It is only now - 17 weeks down the line that I feel able to challenge the way I have been treated by the authority and take soem action.

Unfortunately I have missed the 3 month deadline ofr lodging a claim with the employment Tribunal. I have heard their deadlies are very strict, though on the website it states that in certain circumstances late applications may be considered.

I just wanted advice on whether anyone else has had experience with a late ET and also whether people think I should waste my time persuing it fi i am to be shot down at the first hurdle? I know if I get past this then I will have a strong case!

Another thing which ahs made me extra cross is that they are now making huge cuts across the whole authority and a friend of mine who is also about to go on maternity, is in the same situation I was and is being treated the same. HR seem to not know the law and niether did my union rep.

I have been supporting her with my knowledge and experience but now feel cross that they should be allowed to add extra stress a time when support is needed and also think they are beyond the law

 

Any advice , help , support or constructive criticism most welcome.

Thanking you all in advance

[SarEl]

There are three points here. The first one is easy. You are on an island. Would that island be part of Scotland, England, or Wales? Because if it isn't part of one then the same laws do not apply. I know it might seem a daft question, but it isn't!

 

In terms of the deadline, yes, tribunals are relatively strict about them. But there are exceptions, one of which is sex discrimination (which this claim would partially fall under). And if you can evidence that you were unable to make a claim because of medical conditions for the whole of this time, you may be in with a chance - but you would have to act immediately. No further delay would be permissable - and I cannot guarantee that they will accept the claim, only that they may. If necessary, get the barest bones of a claim in and you can amend it later.

 

In terms of the question about other jobs, this is the most complex question. You are entitled to be automatically selected only if the job has been identified as a suitable alternative employment - not to any other job. So it would depend on the degree of campatability between your job and the ones that you applied for. IT would be, I would assume, the employers argument that these were not suitable alternative employments in the sense the law means, and that would be what they would have to convince a tribunal of. Whilst you would need to be able to convince them that they were. Because this is not simply an unfair dismissal claim, but involves sex discrimination, in the first instance the burden of proof that this was the case would be on you, and you would need to convince the tribunal that there was a case to answer.

[sophouse26]

Hi there

Thanks for the reply.

The Island is classed as mainland england so we are governed by the same laws as the rest of england.

I can easily evidence that there were a number of suitable jobs as a couple of them were roles of a lesser scale/pay which I had previously worked in anyway, so that would be fairly straight forward. I forgot to mention that I pulled out of the interview on one post due to the fact that I was pregnant/on maternioty and felt that my chances would be hindered - I have this in writing to a senior manager also!

Could you expand a bit about the sex discrimination element as the main focus of the tribunal would come under unfair dismissal due to them not following the correct laws around section 10. I was made redundnant on the grounds that central government withdrew the funding for our project and my pregnancy/maternity would've had no bearing on the removal of my post. It would eb most helpful thanks

 

Thanks so much again!

[SarEl]

Ah - but a lower paid post is not at all necessarily a suyitable alternative in law. That is what I meant by it not being quite that simple. Suitable alternative is SAME pay and conditions, and for a lesser post to be considered suitable you should have informed the employer that you would have accepted a lower paid post as a suitable alternative. They aren't required to ask you that - only to inform you if one was available.

 

The sex discrimination claim hinges heavily on these subtleties. It is very hard to make a woman redundant ince her maternity leave has begun, because she is guaranteed her existing post or one on the same grade and conditions when she is returned unless this is absolutely impossible i.e. there is no such post to return to. That is why many employers, faced with this situation, stay the redundancy until she returns - because this protection lapses the minute she walks back through the door. But the right to return to work only applies to women in this situation, therefore if the employer does not fully meet the obligations of the law, it is sex discrimination too.

 

I am afraid that if you pulled out of one interview then that is lost to you - that was your decision, and putting it in writing does not change this. They do not have to "wait on" your return to fill posts.

[sophouse26]

Hi there

Sorry I have missed a few bits out owth regards to the other vacancies. They were on a lower scale but as I had a permenant contract I had salary and benefits protection for a year as long as I took a post which was no more than 2 scales below my current scale. My previous employers knew that we were looking for any alternaitve suitable jobs within that 2 scale range.

 

I have found this further information which others may find useful or could confuse them more like me..... this came form a description of the Regulation 10 of the Maternity and Parental etc Regulations 1999

 

"If there is a suitable vacancy, the employee enjoys the right to have it "ring fenced". She should not have to apply for the job - the entitlement is absolute and there should be no requirement for competition with internal or external applicants. She should not have to fill in application forms, forward her CV, attend assessment centres or demonstrate in any other way that she is the best candidate for the post. The priority applies where there is an appropriate opportunity, simply because of her circumstances. If a suitable alternative vacancy exists with the employer, its successor, or an associated employer, it must be offered to the employee.

The post must be offered even if the woman is not as well qualified as others who face redundancy, is not the best candidate for the job and would not have been offered the job if she were competing with other employees who are also being made redundant. This can create dissatisfaction among other employees who do not share the priority status, but they would be unlikely to succeed in a claim of unfair dismissal as a result of losing out on alternative employment that has gone to a woman on maternity leave. It would, however, be advisable for an employer to be open and transparent about its obligations in this respect in the redundancy process, and to include an explanation of the reg. 10 duty in information provided for both collective and individual consultation."

Interesting how i did not discover this information until after I was made redundant. I hope any other people who face this situation are finding the thread useful as it seems some employers are very much unaware of these rights and regulations

The Badger and Telford& Wrekin council case is very similar to my circumstances.....

Badger v Telford & Wrekin Council ET/1307836/09

This case is a reminder for employers that, even if they go through an otherwise fair redundancy process, they must ensure that employees on maternity leave are offered any suitable alternative employment that exists.

Practical tips

The council no doubt felt that it had acted fairly at the time of Ms Badger’s dismissal, but employers cannot use ignorance of the law as a defence against a tribunal claim.

Employers must always be aware that it is not sufficient merely to alert a potentially redundant employee on maternity leave to suitable alternative vacancies - they have a positive obligation actually to offer the employee any such roles. If an employer does not do so, the employee’s dismissal will always be automatically unfair - whether or not the employer was aware of its legal obligations in this regard.

 

Ms Badger was employed as a youth worker at the council, working with one other colleague on a particular scheme for students. The scheme was not a success, and over time Ms Badger and her colleague had been given other tasks to fill their working day. Ms Badger went on maternity leave in September 2008, but while she was on leave, the council determined that the scheme should be closed, and that this would result in the potential redundancy of Ms Badger and her colleague. The council therefore placed the two employees in a selection pool, and began a redundancy consultation process.

The council’s letter inviting Ms Badger to her first redundancy consultation meeting did not state what the reason for that meeting was. At the meeting, the council advised Ms Badger that she could go on the council’s redeployment register to seek other work, which she did. However, although the council did notify Ms Badger of vacancies, at no point during the redundancy process did it offer any of those jobs to her. The council ultimately dismissed Ms Badger for redundancy and, after her appeal was not upheld, she brought a claim for unfair dismissal.

The tribunal considered that, although the council had erred procedurally regarding the first consultation meeting with Ms Badger, it had cured that defect on appeal. The council’s evidence was that it had been unaware of its duty to offer Ms Badger, due to her maternity leave, a suitable alternative position. The council had simply given her standard advice to look for new jobs and apply for them. The tribunal found that the council took no action to establish if any of its vacancies were suitable for Ms Badger, and that it had given her the wrong advice, putting the onus on her rather than offering her a position. Given the council’s failure in this regard, the tribunal was particularly unimpressed by the council’s argument that none of those vacancies were suitable anyway. It therefore held that Ms Badger’s dismissal was unfair.

No sure what your thoughts are around this or if you are aware of the case? I don't know what Ms Badger was awarded either - I would just like a job to return to after my maternity, especiallya s I live in an area with very high unemployment and limited industries/business I can see myself and my family slipping from being hardworking middle england to poverty If only I had known about this before.

[SarEl]

Sorry - I don't know what she got either - because this is an ET case and sets no precedent in law. But I don't disgaree with anything here. But the test is still whether those were suitable alternative jobs. And it isn't a test you can apply here - it is one that will only be tested by a tribunal. So as I said, every minute you leave a claim is one less minute you have to test the deadline - which has already expired! I am not being unhelpful - I am kicking you up the backside! Claim first - worry about the rest later. Because if that claim isn't in or accepted, the rest doesn't matter one jot.