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At risk of redundancy whilst on maternity leave

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Hi, I'm new to this site and in need of some advice.

 

I work for a local council and we have been given letters stating that our jobs are at risk of redundancy. They are deleting all our current posts and creating new ones. There will be 31 redundancies.

 

I am currently pregnant and am wondering if I should start my maternity leave early to try and avoid the risk of redundancy. There are lots of suitable posts I could be offered and believe that once on maternity leave I should be offered a suitable alternative position before any of my other colleagues are offered the positions. If this is the case then it is worth me starting my leave early to guarantee being offered one of the new positions and not risk losing my job.

 

If this is the case I'm trying to find the relevant legislation that confirms this so I can take it to my employers so they are aware that they have to do this. They have also said that we all have to interview for the positions, if I was on maternity leave would I still have to go through this process?

 

Can anyone be of any help - any please if I've got this wrong and being on maternity leave will not be of any benefit to me please let me know!

 

Thanks in advance.

 

Kim

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Sneaky - but yes it is true (more or less) and your employer will already be very much aware of it. The catch is that they do not have to offer you one of the new positions. In the first instance, they may not be suitable alternative positions - I don't know what you do or what the positions are, so I couldn't say. And nowhere does the legislation say that the suitable alternative has to even be in your department! But once you start your maternity leave you are entitled to return either to the same job (which won't be possible) or to any suitable alternative posiition at the time of your return. The employer therefore does not have to put you into one of the new jobs - but going on maternity leave early will give you some measure of (although not an absolute) protection. I would also urge caution in saying it quite like this to your employers or to your colleagues / managers - just stick to "I want to go on maternity leave early, but I want to return to work so would like to be interviewed for the jobs" - if they get wind of what you are doing, then word gets out - well, it does not reflect well on you and leaves it open for people to say that you connived the system to get a job when better people than you were made redundant. That may very well not be the case - but I doubt you want your colleagues to think the worst of you.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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I'm trying to find the relevant legislation that confirms this

 

Hi Kim, welcome to CAG. Congratulations and on the pregnancy and try not to worry about the redundancy,

 

The relevant legislation is Reg 10 MPL 1999 - http://www.legislation.gov.uk/uksi/1999/3312/regulation/10/made

 

Also, I wouldn't necessarily be too worried about the fact of moving forward your date of the start of your mat leave as the very fact that you are a pregnant employee offers you a degree of protection - albeit by actually being on mat leave you are expressly covered by Reg10 which is of course better.

 

ER's are genrally speaking reluctant to dismiss a pregnant EE as they may, "... find it difficult to rebut the suspicion that you have selected this employee for redundancy because she is pregnant, which could leave you open to penalties for unfair dismissal and sex discrimination.." see question 17 on http://www.lawdonut.co.uk/law/employment-law/maternity-paternity-and-adoption/maternity-issues-and-smp-22-faqs

 

In addition, "Where during the AML period (the second 6 months) it has become not reasonably practicable by reason of redundancy for the employer to continue to employ you under your existing contract of employment then, as applies to redundancy occurring during OML (the first six months) leave, you would be entitled to be offered any suitable alternative vacancy with your employer, or an associated employer, on terms 'not substantially less favourable'.

 

And, not forgetting that any such offer should be in preference to any colleagues made redundant at the same time as you, provided that the post would have been suitable and appropriate for you.

 

Hope this helps

 

Che


...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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Thanks for your reply. Its such a difficult situation. The new jobs will be almost exactly what I currently do (customer advisor) so I fit the job description perfectly. I guess the catch is that by the time I return from maternity leave the positions will already be filled. They are looking to make the redundancies in April this year and my maternity leave (if started early) would be in March, if they did not then offer me one of the new posts I would not have a job to return to so wouldn't they then at that point (as my job would have been deleted) have to make me redundant? I'm very confused as to the best way to go with this, think overall I may just have to take my chances with everyone else and hope that they don't dismiss me knowing that I'm pregnant and this is an easy way to get out of having to pay maternity pay.

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if they did not then offer me one of the new posts I would not have a job to return to so wouldn't they then at that point (as my job would have been deleted) have to make me redundant?

 

No Kim, I don't think that would be possible as it would be sex discrim to use as a potential selection criteria for redundancy the fact that you would be on mat leave and your post would be 'deleted' by the time you came back.

 

I think (although have not checked this), that the correct procedure would be

 

1) to go through the red selection process you are given priority for suitable roles as on mat leave -

2) your are given said role (subject to suitability etc as mentioned above) - but are then on mat leave from the same so obviously cannot physically attend work BUT they then fill that role (your new post-red role) with a temp EE until

3) your RTW from mat leave whereupon you take up role and temp is potentially dismissed.

 

I'm happy to be corrected on the above as this is from memory rather than research but this is what I think should happen.

 

As you say it is a public sector role are you in a Union?

 

Che


...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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Kim..... I hear your pain.

 

Looking at it from a parental point of view I would ask this. Is this your first child or a subsequent one? If the first then, from a parent point of view, I want to assure you that your opinion over your job or potential job WILL change after the birth.

 

If you are thinking from the viewpoint of a woman who is yet to be a mother then that view will change after that beautiful new life is in the living world.

 

Ask yourself this, do you have a supportive husband or partner? He or she will look after you and the child after birth. If you have a child, that child and family is a COST to ones life and no amount of argument to the contrary to continue your career will counter the position of wanting to continue your career over having a family. Unless your career is MUCH MUCH more important than having a family I doubt waiting or not waiting to go on maternity leave has much importance. You WILL want the baby over your career.

Edited by papasmurf1cx
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Looking at it from a parental point of view I would ask this. Is this your first child or a subsequent one? If the first then, from a parent point of view, I want to assure you that your opinion over your job or potential job WILL change after the birth.

 

In the 'real' world totally valid points papasmurf - sometimes I (male) get too bogged down in considering the legal issues to offer any advice of a practical kind like yours - which is relevant - and valid.

 

I can say from personal experience when I worked in employment law I did use to notice that quite a few EE's went on mat leave saying that they would be back - but - if it was the second (or more) child then quite often the EE changed their mind post birth and subsequently never returned.

 

Of course what is right for the OP is dependent on her circumstances.

 

Kind regards

 

Che


...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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I agree with elche - but do remember that you are talking about a council here and not the "average employer". So the rules around redeployment and redundancy are generally much more sophisticated - and in your favour - that they would be in many other employments. That is why I said that you wouldn't need to tell the employer about your rights. But this also means that there are a much greater number, even in these hard times, of suitable alternative vacancies. Even more so because, if you decide that you do not want to return to the existing contractual role (the right to return is obviously on the same hours too - and that may not be what you want) and that isn't possible, then there will be a lot of other roles for which you are considered suitable. Councils are also more flexible about varying hours, and if they can't do it in one job for wahtever reason, they will often find another that can.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Thanks again for your replies. This is my second child and I work part time. As much as I wish I could we are not financially in a position for me to give up work so I really do have to fight for my job. It does sound positive in that I should be offered a new position being pregnant but it sounds like my best hope rests on actually being on maternity leave. I am in a Union at work so will try and have a chat with them on Monday. Its just so difficult when due to the timescales given at work and having to give 4 weeks notice of going on maternity leave I've got to make a decision within the week!

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I have got to be honest and say that whilst I cannot give you a guarantee, given that this is a council, the chances are that being preganant will ensure that you get a job (and I did say a job - not the one you want right now). But it does depend on the extent to which you want to be certain of that. I don't see a major risk either way. But that is only because of the type of employer - nobody else should take that as applying to them! And I would also have to point out - not to worry you, but just to be fully informed. These are the first round of cuts - they wil get harder and deeper over the next two years, and having been "resorgnaised" now won't save anyone. Most councils are operating on being able to absorb many redundancies in this round of cuts with natural wastage and redeployment. By this time next year that won't be possible. So I would advise keeping a close eye on the situation anyway, even whilst on maternity leave, because there may be opportunities which are safer than where you are now - and councils are one of the few employers who will appoint to a job whilst someone is on maternity leave. Don't leave anything to chance or assume that if you "survive" this one, that it is over.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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