Maternity Action clinics - Redundancy Questions

Getting SMP as a lump sum
Fixed term contract not being renewed
Reapplying for my role while on maternity
Made redundant two weeks into maternity leave
Facing redundancy and can't work full time
Fired while on maternity leave
Facing redundancy on maternity leave
I think I'll be made redundant as soon as I get back from Maternity Leave
Facing redundancy after shielding
SMP if I'm made redundant
Facing redundancy because I'm part-time
Redundancy because I can't do flexible shifts
Have to do shifts when I don't have childcare or be made redundant
Had to interview for my job while on maternity leave
What's a 'suitable' alternative job?
Seven weeks pregnant and facing redundancy
Want flexible working but worried about redundancy
Made redundant when my baby was eight weeks
Is my junior replacing me?

Getting SMP as a lump sum

Not as stressful a situation as many ladies on here but I'm being made redundant (all above board) about 6 weeks before my due date. I will be paid SMP in a lump sum and 'start' my 'mat leave' the day after my job finishes.

Am I then classed as on statutory leave (and if so how do I prove it as SMP will be on final payslip and I'll have no PAYE or anything like that going on) or am I an unemployed person who happens to have a small baby? I've come across a few instances where it would be helpful to know what I would be defined as and how long that status would last ie is it 9 months 'on leave' from a nonexistent job as have had SMP for that period, or 12 months as that's how long I could have taken? Or am I just unemployed from day one until I start a new job and the SMP payment doesn't make any difference, other than financially of course!

Maternity Action says: It's a good question as this causes a lot of confusion.

As your job is ending you won't in fact be on 'maternity leave' as 'leave' is the legal right to have your job held open for you so that you have a job to return to and you will be regarded as unemployed once your job ends. However, as you state that you have qualified for SMP you will be regarded as being in your 'maternity pay period'. This lasts for 39 weeks (9 months) from the start date. In your case it will be 39 weeks from the date your employment ends and your employer pays it in a lump sum. If you start working for a new employer (who didn't employ you in the 15th week before your baby was due) within the maternity pay period you will need to return any weeks of SMP to your old employer.

Unfortunately, the maternity pay period is treated in different ways depending on what other benefits you are claiming. For example, if you are claiming Universal Credit, the lump sum payment will only be treated as being paid in the month in which you receive it and it won't be taken into account in any subsequent months. However, there are some older 'legacy' benefits where the SMP payment will be taken into account over the 39 week pay period so please get further advice if this applies to you. Please also bear in mind that although you will be unemployed you cannot claim contribution-based jobseeker's allowance during your 39 week pay period as you are treated as 'unavailable for work' during this period.

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Fixed term contract not being renewed

Hi, I have a question about fixed-term contracts. My full time contract (FTC) runs out in October and I am due late December.

I work in an industry where full-time contracts are used commonly, and in lieu of making permanent staff. There is no realistic/ business reason for not ending my FTC but because of the way the (large) company is run, there are often complex reasons given as to why our FTC is not renewed: for example, people in the past have been told that they are covering people who have not worked in this part of the company for years, or in that role. So there is always a 'reason' to end the FTC if you see what I mean - so I'm worried that mine won't be extended because 'the person I'm covering for is back from maternity leave' or 'the person I'm covering for is coming back to this role' (eg the person your covering for changes seemingly at whim!)

If this is the case, how would I prove that I am being let go because I'm being discriminated against?

There are several others in the same FTC role as me, but I'm worried that when push comes to shove I'll be told someone is coming back into theirs and I should have always known. Even if someone IS coming back into 'my' role, would there still be an issue, based on the fact that I've never been covering for just one person, and that this seems to change all the time? If there is a job loss, should I have to compete with the other people on FTCs in my role?

Also I should add, my contract has so far been extended over a period of three years continuously (again, being told that I'm covering for various different staff who never return).

Maternity Action says: If a fixed term contract expires and is not renewed, this is a regarded as a “dismissal” in law. In order for an employer to avoid a claim of unfair dismissal (which an employee can bring if they have two years continuous service, the employer must be able to show that the reason for the dismissal falls within one of the five potentially fair reasons for dismissal. These are conduct, capability, redundancy, illegality or “some other substantial reason”. However, it is not enough for an employer to show that they have a fair reason for dismissing the employee – they also have to follow a fair procedure. So, in the case of a redundancy, the employer must first carry out a fair selection process if there is more than one employee carrying out the same type of role (as in your case). Once the employer has made their selection, they must then follow a fair consultation process which includes considering whether there are any suitable alternative roles for the employee.

The two most common reasons used by employers for the non-renewal of a fixed term are redundancy and “some other substantial reason”. The latter reason usually is used where the employee has been recruited specifically to provide cover for someone on maternity leave/other statutory leave or to cover for someone who is on sabbatical or long term sick leave and that employee, whose role they have been covering, returns. The reason for dismissal therefore is the return of the employee whose role was being temporarily covered – it is not a redundancy as the role still exists. Instead the reason falls under the category of “some other substantial reason” . In that situation, the employer should still follow a fair procedure, particularly if the employee has been there for 2 years, and as part of that procedure, they should consider whether there are any suitable alternative roles available that could be offered to the employee.

If, however, the reason for dismissal is related to a “protected characteristic”, this is unlawful and, regardless of the length of service, the employee will potentially have a claim for discrimination. Pregnancy is, of course, a protected characteristics and if the reason for the non renewal of a fixed term contract is pregnancy or the fact that the employee is going on maternity leave, the employee would have potential claims for both automatic unfair dismissal and discrimination.

In relation to your situation, it seems to me that your employer would be unable to rely on redundancy as a potentially fair reason for not renewing your fixed term contract. As you say, the work is still continuing so there is no redundancy situation. Even if there was a reduction in the work, there are a number of other employees carrying out the same type of work as you, so your employer would have to carry out a selection process before putting anyone at risk of redundancy. This would involve “pooling” together all the employees who carry out the work that has reduced and then using objective selection criteria to decide which employees in the pool should be put at risk. It goes without saying that pregnancy should not be used as a criteria for selecting anyone for redundancy nor should the fact that the employee is going to be absent on maternity leave be a reason for selecting her for redundancy. Selection on such discriminatory grounds would be unlawful and, again, give rise to a claim for discrimination.

I also do not believe that your employer will be able to rely on “some other substantial reason” in order to justify the non-renewal of your fixed term contract. It would be incredibly disingenuous of your employer to argue that the reason your fixed term contract is not renewed is because you were covering all along for someone you didn’t even know you were covering for. The fact that you have been there for 3 years, alone, would undermine any argument that you were covering for anyone.

I note what you say about the difficulty of proving that you had been discriminated against if your employer were to dismiss you at the end of your current fixed term contract. Rarely, however, will an employee have evidence of direct discrimination and the Tribunal is alert to this and to the insidious nature of discrimination. If there is no reason why your contract should not be extended again (as you say, the work is ongoing and your contract has been extended twice already) and the only thing that has changed is that you have told your employer you are pregnant, I believe that these are facts from which a Tribunal could conclude that your employer has committed an act of discrimination. It would then fall to your employer to prove, on the balance of probabilities, that the treatment was not on the grounds of your pregnancy – in other words, that there was another explanation for the treatment that had nothing to do with your pregnancy - and it is likely they will struggle to do this.

I would hope, in an organisation the size of your employer which has a reputation to protect as well, that they would not do something as crass and obvious as not renewing your fixed term contract while you were pregnant and giving you some opaque/convoluted reason for doing this like telling you it is because you have been covering for someone else. Such a decision would be incredibly risky from their point of view. Nonetheless, if they do decide to terminate your contract before your maternity leave commences, you should raise a formal grievance and seek legal advice as soon as possible to give you time to try and reach a resolution with your employer and to ensure that you are not having to make difficult decisions close to your due date. It is important to note that there are very strict deadlines in the Employment Tribunal and if a claim is not commenced within 3 months of the date of dismissal or the act of discrimination, it can be fatal to any potential claim.

One final, important, thing you should be aware of is that, under the Fixed-term Employees Regulations, employees who have been continuously employed for four years or more on a series of successive fixed-term contracts are automatically deemed to be permanent employees (that is, employed on an indefinite contract) unless the continued use of a fixed-term contract can be objectively justified. I am not clear when you will reach the four year point, but if your contract is renewed at the four year point then – unless your employer can justify continuing to use a fixed term contract (which seems highly unlikely) - you will automatically become a permanent employee and will hopefully no longer have to be concerned about your contract not being renewed on a whim.

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Reapplying for my role while on maternity

My company has announced they are going through a restructure, reducing from 13 roles to 11 my current job is still there but yet I am being put into a pool and having to reapply for it. I have been on maternity leave for 9months and was planning to take 12months. Are they allowed to make me re apply for my role?

Maternity Action says: When an employer engages in a process that may result in redundancy, women on maternity leave do have a number of legal protections. While these protections do not mean that you cannot be made redundant while on maternity leave, they are designed to prevent your period of maternity leave from being detrimental or a negative factor for you in any redundancy process.

What this would normally mean for an employer selecting potential people for redundancy is that they would need to avoid criteria that puts you at a disadvantage because you are on maternity leave. For example recent performance, attendance, or projects etc.

I see from your summary below that your employer is proposing a process that only seeks to interview at risk employees with a view to reducing numbers from 13 to 11 employees. At the very least, your employer should be transparent about the criteria is using in the interview process to select the 11 people who stay. It will need to be clear that your period of maternity leave will not count against you in considering any of the responses to the interview panel. This can be very hard for an employer to do.

You can use this to try to demonstrate that it will be difficult for your employer to ensure that an ‘interview only’ redundancy process does not put you at a disadvantage because of your maternity leave. Presumably colleagues who are not on maternity leave will be able to discuss more recent and perhaps more direct experiences of the current challenges facing your employer. This would place you at a disadvantage because of your maternity leave, which is unlawful. So you should challenge the fairness of asking you to interview because you may already be starting on the back foot compared to others.

There is an additional provision, which could assist you in general, and in challenging the above as part of the consultation process. Where an employer has a potentially suitable available role for a women on maternity leave, they have an obligation to offer that role to person on maternity leave without the need for an interview, even where this prioritises the person on maternity leave above someone who is also at risk of redundancy. You could argue that because your employer is only interviewing, this shows that you should be automatically placed in the role without having to interview. You could argue that all the 11 roles are effectively suitable alternative employment. Or, if that fails, you could explain that the reason women on maternity leave do not need to interview is because it is understood that there is an inherent unfairness in the interview process for people who have been away from the workplace, even for a relatively short period of time. As a result, the law has inserted this protection to automatically prioritise women on maternity leave over other at risk people.

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Made redundant two weeks into maternity leave

I was made redundant in July whilst on maternity leave, two weeks after my mat leave started which was four days after my baby was born. I’ve found that you only have three months to do anything about this, is this true? It’s now been eight months. It was the last thing on my mind what with having a newborn to look after and two other children under the age of four. Thanks

Maternity Action says: I am sorry to hear of your redundancy. Unfortunately, you are right in that for most employment claims there is a time limit of three months (less one day) for starting tribunal proceedings. This means that you must contact ACAS within the time limit in order to start early conciliation and if ACAS are not able to help you and your employer resolve your dispute, you have a further month from the date of the ACAS Early Conciliation certificate in which to issue your employment tribunal claim.

If your claim is for unfair dismissal, you would ordinarily be expected to start your claim through ACAS within three months from the date your employment ended. A tribunal can consider a late claim if it was not 'reasonably practicable' for you to make the claim within the time limit. The tribunal will still expect you to have presented your claim within a reasonable period. If your claim includes a claim for discrimination e.g. pregnancy discrimination or disability discrimination, the time limit is also three months from the date of the act you are complaining about (i.e. the date of redundancy) and a tribunal can extend the time limit if they consider it is 'just and equitable' in all the circumstances.

In practice it can be difficult to successfully argue that the time limit should be extended so it is important to get advice on what claims you might have, the strength of those claims and whether it is worthwhile pursuing in view of the time limit difficulties you may face. You can find more information here: maternityaction.org.uk/where-to-go-for-more-help-legal-clinic/

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Facing redundancy and can't work full time

Thank you for this thread. I'm currently on maternity leave until next month. My company have been doing voluntary redundancies hoping enough people will go so they do not have to make compulsory ones. The issue is my department has been hit the hardest by Covid. They have actually more or less shut down my department and are trying to relocate us to other jobs where possible. My manager said they were hoping more people from my department would have taken voluntary. There are other jobs within the company are very similar which I think they may be trying to slot us into.

I have told my manager I am happy to be placed in another job even if it's not the same role. However, what are my rights regarding that? If the job is higher paid/quite different do they have to interview me for the role/advertise it first?

The issue with the job roles similar to mine is they are all full time and I am part time. My manager said I can't have my hours increased and I don't want them to be increased as it wouldn't make sense anyway for child care cost reasons.

Also how long does my maternity rights last after I return? I have heard it is 6 months but just wanted to make sure.

Maternity Action says: I’m sorry to hear that you have been affected by redundancy. You, along with other individuals on maternity leave (and some other types of family leave) have certain protection in a redundancy situation. You are not protected from selection and can still be made redundant, however, you may have a right of first refusal for alternative roles that you mention, which I will talk about below.

What are my rights regarding alternative roles?

If you are absent on maternity leave at the time of redundancy, you will have a right of first refusal for any “suitable alternative vacancy” if such a role is available, even if you are not the employer’s first choice. The role must be a “suitable alternative vacancy” for this protection to apply. However, an important point to note is that, the protection regarding suitable alternative vacancies comes to an end when you return to work after maternity leave. The government consulted in early 2019 on whether to extend this protection under regulation 10 to cover the period from when the women first informs her employer of her pregnancy to six months after her return to work, and has committed to introducing this reform, however, the law has not currently been changed.

Different role – If an alternative vacancy is notably different to your current job in terms of the skills and experience required, then it is not likely to be considered a suitable vacancy, and while you can apply, you would not have the right to be offered it automatically at all, or ahead of others. However, if it is only different in terms of, for example, the job title but the skills and experience required are substantially the same as those you have demonstrated through your current role, then this is arguably a “suitable alternative vacancy” and you would have a right of first refusal provided this happens during your maternity leave.

Higher pay – Where an alternative vacancy has a higher pay, this should not, by itself, determine whether it is suitable or not. However, if the higher pay reflects a higher level of skill and experience required for the role which you do not have, then the role may be different enough to be equally open to you and the other members of staff at risk of redundancy to apply for.

It may therefore be in your interest to be able to show that the relevant roles that you are interested in should each legally be classed as a “suitable alternative vacancy” i.e. by demonstrating that you have the necessary skills and experience and that the terms are not substantially less favourable. Depending on what stage in the redundancy process your employer is at, they might already have classed certain roles as “suitable alternative vacancies” and perhaps just wanted to ascertain your interest in the roles in the first instance before offering any to you as a priority. It might be worth you raising this with your employer, explaining that you understand the relevant roles are “suitable alternative vacancies” and checking that these are therefore going to be offered to you, whilst being prepared to explain your reasoning.

If the case is as I suspect, and the redundancy will not be effective until you have returned to work, then there is no special treatment, however, you cannot be discriminated against because of your maternity leave. Your employer should not penalise you for being off, or mark you down in interviews for not having up-to-date examples etc.

Do I have to interview for the roles?

If the role is classed as a “suitable alternative vacancy” and the redundancy takes place while you are on maternity leave, then you are not required to go through an application or interview process where the other members of staff are not protected and you have the right of first refusal. However, once you return to work, and your right of first refusal expires, you may need to apply in the usual way.

In terms of attending an interview, legally there is no concrete answer on asking you back in during maternity leave for this purpose. In practice, if an interview process is required, your employer would have to give you sufficient notice and should ask you to use a Keeping In Touch (KIT) day and pay you for it (assuming the other candidates are attending on work time). If you have used up your 10 KIT days, then that could cause a problem because technically working on an 11th day would automatically terminate your maternity leave. You should also explain that you will be disadvantaged as a result of your maternity leave and no longer being in “work mode”. Ideally the employer would then factor that in, and certainly if they don’t you could argue that they discriminated against you on grounds of sex/maternity leave. If you are breastfeeding you may need to flag that too in case it impacts on you attending interview. It would be discriminatory if they took into account the fact that you are still on maternity leave as a reason not to offer you the role.

While I have flagged some discrimination concerns, I suggest raising these issues positively and working with your employer. You are keen to be offered a new job and so want to encourage your employer to offer you it either automatically or after interview. If they are not amenable to these suggestions you can then consider whether it is necessary to be more forceful about the discrimination angle. You can appeal against their decisions and raise a grievance (formally or informally) or pursue your rights in the tribunal. A word on timescales though: if your employment does end by reason of redundancy, you have 3 months (less one day) from the termination date to start a tribunal claim process via ACAS. We hope that this has helped.

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Fired while on maternity leave

While on maternity my company has changed owner and my employer has fired me - they opened a new position (lower paid) and employed my colleague - without any internal or external advert - they just gave her the job. Is that a correct way? Could I challenge it? Please advise.

Maternity Action says: Thank you for getting in touch. We are sorry to hear of the difficulties you are facing. Even though your question is short and to the point, it does actually involve a number of legally complex issues which may not be properly addressed in short written answer. This response is given as a general overview only. I would strongly encourage you to take some further advice, promptly.

TUPE: I’m afraid that I am not clear on what you mean by “changed owner”. If the business in which you were employed transferred to another business, and immediately before the transfer the original business was based in the UK, the Transfer of Undertakings (Protection of Employment) Regulations (aka ‘TUPE’) apply. TUPE will not apply where there is simply a transfer of shares to other individuals or another business.

If TUPE does apply it means that your employer may have had a legal duty to handover what is known as ‘Employee Liability Information’ to the new business and to ‘inform and consult’ affected employees on the transfer. If TUPE applies but you were not ‘informed’ and/or ‘consulted’ on it, you may have the right to claim up to 13 weeks’ pay in compensation.

Importantly, if TUPE applies, the affected employees should automatically transfer to the new business. If this doesn’t happen, any dismissal due to the transfer itself will be an automatically unfair dismissal unless the employer can show that the dismissal was actually for an economic, technical or organisational reason and that it followed a fair procedure in dismissing you.

Dismissal: You have said that you were ‘fired’. I have assumed for the purposes of my response that you were made redundant; but different laws will apply if you were dismissed for another reason. If your role becomes redundant whilst you are on maternity leave your employer is obliged to follow all the usual rules on a fair redundancy dismissal – including that there must be a genuine redundancy, that you were selected fairly, properly consulted, a fair procedure followed and any suitable alternative roles offered etc.

However, you have an important additional right if the redundancy occurs whilst you are on maternity leave. When you take maternity leave you have the right to return to your exact same job unless it is not reasonably practicable by reason of redundancy. If your role becomes redundant whilst you are on maternity leave you are entitled to be offered any suitable alternative vacancies that exist with priority over other employees who are not on leave. A suitable alternative vacancy must be both suitable and appropriate for you to do in the circumstances and on terms and conditions that are not substantially less favourable to you than if you had continued to be employed in your old job.

You may have a claim for maternity discrimination and/or automatic unfair dismissal where there is no consultation, or there is inadequate consultation, because you were on maternity leave, you were dismissed (or selected for redundancy) due to being on maternity leave; and/or you were not offered any suitable alternative role that existed.

If you were made redundant it is worth checking that you were paid all that you were entitled too including: notice pay, accrued but untaken holiday, and a redundancy payment. You should have also received your full entitlement to Statutory Maternity Pay. Do also check that you have been paid in full for any contractual entitlements you have over and above the statutory minimum. If you have not been paid these sums you may have claims for unpaid sums.

I have outlined a number of potential claims you could have. It is probably best that you work out what you want to achieve – if you want to get your job back, you could appeal their decision to dismiss you. I would always encourage positive and constructive discussions with your employer, explaining where you think they have gone wrong and offer them some practical solutions. Ultimately, you may have the right to make claims in the Employment Tribunal for unfair dismissal and/or discrimination and/or failure to ‘inform and consult’ and/or unpaid sums owing to you. It is important that you are aware that there is a strict 3 month less 1 day time limit for making claims to the Employment Tribunal – and the time limit runs from the date of the act/decision that you are complaining about. You also have to go through Acas Early Conciliation before you will be eligible to make a claim in the Employment Tribunal. You can contact ACAS on 0300 123 1100.

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Facing redundancy on maternity leave

I am five months into my maternity leave. I work in a school and there has been some restructuring due to funding issues. My role is being deleted. There are two of us who do this role but only me on maternity leave. They have 'ring fenced' myself and the other member of staff for 2 roles. One which is very similar to my previous role and a second which is very different. I have registered my interest in the similar role and told my boss that I am not interested in the other. Both roles are full time and previous to going on Mat leave I was working part time.

I would like to know if I should be offered this role or if they are justified in asking me to apply (myself and the other member of staff are both interested in the same role.) I have read advice which suggests that I should be given priority over the other member of staff because I am on Maternity leave. I also want clarity on whether they can call me in to interview when I am on mat leave. I feel strongly that I am at a disadvantage because my head simply isn't in 'work mode' and I would struggle in an interview at present. If it does go to interview and I'm not successful am I then made redundant? The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years. I would appreciate any advice on the matter.

Maternity Action says: I’m sorry to hear that you have been affected by redundancy. As you say, individuals on maternity leave have certain protection in a redundancy situation. They are not protected from selection and can still be made redundant, however, you may have a right of first refusal for the alternative role you mention, which I will talk about more below.

As a quick bit of background, it sounds like both you and your colleague who performs the same role have been provisionally selected for redundancy because that post is disappearing. As such, I’ve assumed it is not, for example, the case where 2 out of 4 people doing the same job are at risk, and that as such there was no scoring process carried out to decide who fell to the bottom of the list (if there has been and some people doing the same or similar role to you have not been placed at risk, you might want to think about whether the scoring was carried out fairly, and for example, they didn’t mark you down for reasons connected with your maternity leave). It could also be relevant to check that your employer was right to single out the role performed by you and your colleague. If others do a similar job to you, then you may want to ask why those others were not included in the “pool” of people at risk.

Assuming there is nothing untoward as explain above about how you have ended up at this point, we now need to look at how to approach the new roles. In particular you asked:

Should I be offered this role or are they justified in asking me to apply (myself and the other member of staff are both interested in the same role)?

To be classed as a “suitable alternative vacancy”, the work involved in the new role must be suitable, appropriate and the location and other terms and conditions not substantially less favourable than in your current job. As the alternative vacancy is at a lower grade, lower pay and full-time as opposed to your current part-time job, it might be argued that it is on substantially less favourable terms and therefore not a “suitable alternative vacancy”. On the other hand, the fact that it is full-time might make it more favourable as your hours would not be cut, albeit on a lower pay. It is therefore not clear whether this available role is a suitable alternative that you should be given first refusal on, or whether it is different enough to be equally open to you and the other member of staff at risk of redundancy to apply for. It is then in your interest to be able to show that the role should legally be classed as a “suitable alternative vacancy”.

Your employer might already have classed it as a “suitable alternative vacancy” and perhaps just wanted to ascertain your interest in the role in the first instance before offering the role to you as a priority. It might be worth you raising this with your employer, explaining that you understand the role is a “suitable alternative vacancy” and checking that this is therefore going to be offered to you, whilst being prepared to explain your reasoning.

Can they call me in to interview when I am on mat leave?

That’s a difficult position to be in. If the role is classed as a “suitable alternative vacancy” then you are not required to go through an application or interview process where the other member of staff is not protected and you have the right of first refusal. However, if the role is not a suitable alternative and is therefore open for application then you may need to apply in the usual way. Legally there is no concrete answer on asking you back in during maternity leave for this purpose. In practice, if an interview process is required, your employer would have to give you sufficient notice and should ask you to use a Keeping In Touch (KIT) day and pay you for it (assuming the other candidate is attending on work time). If you have used up your 10 KIT days, then that could cause a problem because technically working on an 11th day would automatically terminate your maternity leave. You should also explain that you will be disadvantaged as a result of your maternity leave and no longer being in work mode. Ideally the employer would then factor that in, and certainly if they don’t you could argue that they discriminated against you on grounds of sex/maternity leave. If you are breastfeeding you may need to flag that too in case it impacts on you attending interview. It would be discriminatory if they took into account the fact that you are still on maternity leave as a reason not to offer you the role.

If I go to interview and I’m not successful am I then made redundant? Yes, if you do interview for the role (due to it not being a suitable alternative) and are not successful then you could be made redundant. The new role is also at a lower grade and lower pay than I was on previously although my salary has been protected for 2 years.

You would still retain your continuity of employment. Otherwise, the new role would essentially be a new contract and so the terms and conditions are allowed to differ. Be mindful that, in order for the role to be classed as a “suitable alternative vacancy” and for you to therefore be automatically offered the role, you may find yourself arguing that the terms are not substantially different.

While I have flagged some discrimination concerns, I suggest raising these issues positively and working with your employer. You are keen to be offered the new job and so want to encourage your employer to offer you it either automatically or after interview. If they are not amenable to these suggestion you can then consider whether it is necessary to be more forceful about the discrimination angle/appeal against their decisions/raise a grievance (formally or informally) or pursue your rights in the tribunal. I recommend trying to get this resolved amicably. A word on timescales though: if your employment does end by reason of redundancy, you have 3 months from the termination date to start a tribunal claim process via ACAS.

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I think I'll be made redundant as soon as I get back from Maternity Leave

My employer started a consultation into my team before covid. I informed them of my pregnancy and they paused the consultation stating it was due to covid, even though they had booked the meetings electronically once finding out about covid. They have now said they are not doing the consultation until myself and another colleague return from maternity leave. They won't discuss possible part time options or flexible working because they say it's impossible to know what the situation will be like in another six months. They have implemented the proposed structure from the consultation since I have been on mat leave.

My concern is that they intend to downgrade my post/make me redundant when I return from mat leave. It appears they are waiting until mat leave ends because I then lose the protection of being entitled to be offered a suitable alternative vacancy (there is a new post in the structure which would be a suitable alternative). They had told me I would have to apply for the role, but I said I understood that I should be offered a suitable alternative without interview prior to colleagues not on mat leave. This was when they changed their tune and said nothing will happen until I go back. I am also really stressed because I will also need to sort childcare. When will my employer have to confirm what my role will be, do they need to give me a period of notice? And how would I 'prove' they've delayed the consultation until my protected period whilst on mat leave, has ended?

Maternity Action says: So as I understand it, you were informed that you were at risk of redundancy, but exercise then this was put on hold, apparently due to Covid 19. However, the process was then continued for all colleagues except those on maternity leave, and that process has been completed with the new structure implemented.

I can understand your concerns in this regard. By not being involved in the process, you have not had the opportunity to be consulted about the changes, or to access and secure the alternative roles. You are correct that during your maternity leave, if you were to be made redundant, you have a right of priority to be offered a suitable alternative vacancy over others who are not on maternity leave. From your post, I understand that the new structure that has been put in place has some new roles (as opposed to simply being a reduction in numbers in already established roles) - you refer to one that you consider to be suitable, and mention that you had been told that you would have to apply for it. That being the case, you should have been placed in this role (unless of course it was also suitable for your colleague also on maternity leave in which case this would not be automatic as she would have the same right of priority as you).

You should have been included in the redundancy consultation process. Sometimes employers (rightly or wrongly) decide to exclude women on maternity leave from redundancy exercises as they expect that by the time they return from maternity leave, the situation may have improved and there will be more likely to be a role available. However, from your description it does not sound like that is the case here, nor does it sound as if you have been offered any reassurances about the future. That being the case, it does look like you have been disadvantaged as a result of being excluded from the redundancy consultation. That would be likely to constitute unlawful discrimination on the grounds of pregnancy.

From your post, I can see that you have already taken steps to try to resolve the matter by speaking to your employer. Was this with your manager, or have you discussed the matter with HR? If not, I would recommend that you ask for a confidential meeting with HR to discuss your concerns about your exclusion from the exercise and this impact upon your legal rights. If you have already spoken with HR, it is possible to escalate your concerns and speak with someone more senior? It would be worth thinking about what you want in terms of an outcome; for example, if the new structure is in place and all roles have been allocated to others as part of the process, it is unlikely that your employer would move someone out of one of the roles. What would a good outcome look like to you?

If you are unable to resolve it by talking to your employer informally, you could raise a formal written grievance. Generally this should be a last resort as it is not always the best way to find constructive solutions – especially if you have already discussed this with the manager and HR involved. However, if all else has failed, it may be the only way to make your employer take your concerns seriously. As with the discussions above, you should be clear on what outcomes you might want from the grievance process.

Finally, you can contact ACAS to register for early conciliation to see whether they can resolve the dispute and finally bring an employment tribunal claim if you cannot resolve matters. Please be aware that there are strict time limits which operate for bringing claims to the employment tribunal. Generally speaking, you have three months less a day from the date of what you are complaining about or the last in the series of things you are complaining about to contact ACAS if you want to go to the employment tribunal afterwards (or think that you might want to do so). I would recommend that you do this sooner rather than later i.e. do not wait until your return from maternity leave.

If you are dismissed in circumstances where you should have been offered a suitable alternative role during the protected period but were not, that dismissal will be automatically unfair. It may also constitute unlawful discrimination. You ask how you would prove that they have delayed the consultation process in order to get round your right of priority to another role. It wouldn’t be for you to prove that was the intention behind the delay. If it is clear that (i) you were excluded from the redundancy exercise; (ii) this was because you were on maternity leave and (iii) this had the effect of removing your legal right to be placed in a suitable alternative vacancy, that would likely be enough to demonstrate less favourable treatment.

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What can I do if my employer makes me redundant while I'm on Maternity Leave?

Redundancy is now on the cards for me, and fairly likely. I am only entitled to Statutory Notice and Pay. My key question is that at what rate will my Statutory Redundancy Notice be at. If I am on Maternity Leave will it just be the Maternity Pay or are my employers obliged to pay me at my standard rate?

Maternity Action says: As you have said that you are only entitled to statutory minimum notice, the notice period should be paid at your full rate (although the Statutory Maternity Pay would be offset against it – i.e. you would not receive this in addition to the notice pay for that period, unless they paid you in lieu of notice). The same applies to any accrued but untaken holiday pay. You will remain entitled to the balance of Statutory Maternity Pay which should be paid in addition to notice, holiday and any redundancy pay applicable.

Please remember that if you are on maternity leave whilst redundancy consultation is ongoing, you have the right to take priority for any suitable alternative vacancy that may be available.

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Facing redundancy after shielding

I am currently on furlough and pregnant. I am now 15 weeks and have spent my entire pregnancy shielding (I was working from home from 20th March when I found I was pregnant and furlough began on 1st April). My furlough has been extended twice (May and June) and I do not know when I am expected back.

My question is, when should I notify my employer? I know I don’t have to until 15 weeks before planned mat leave, but I am concerned that this may affect my maternity rights. Should I wait until I am expected to work (I can work from home)?

My concerns are that redundancies may take place, and if they do and I haven’t notified my employer I have no maternity rights. On the other hand, I am concerned that if I tell my employer it could influence their decision on redundancy under the guise of the impact covid has had on the business. I know I can’t be made redundant for being pregnant, but this could be a deal breaker if they were contemplating redundancies.

Maternity Action says: Congratulations on your pregnancy. I can see why you are unsure how to proceed given the uncertainties surrounding job security generally during the pandemic.

You are right in that for maternity leave purposes, you are not required to inform your employer of your pregnancy until the 15th week before the EWC. However, you will not be able to benefit from rights such as the entitlement to paid time off for antenatal care, risk assessments and the statutory protection on account of your pregnancy from discrimination or dismissal until your employer is made aware that you are pregnant. On this basis it is often preferable to inform your employer sooner rather than later.

I hear your concern that they might react negatively to the notification and use the pandemic as a reason to remove your role. Certainly the thresholds for employers to justify redundancies may have been lowered a little given the current circumstances. That being said, they should still consult with you if your role is at risk and discuss any proposal to remove your role before dismissing you. In that context you would also be able to raise any concerns you might have about the redundancy not being genuine. If, for example, you become aware that you are the only person performing your role who has been dismissed for redundancy then could indicate a decision may have been made based on the protected characteristic of pregnancy and the burden would be on your employer to demonstrate that was not the case.

Ultimately it is your choice and one can never guarantee how an employer will react to notification of a pregnancy. That being said, I would hope that they are supportive and conduct themselves in a manner consistent with the protection afforded to you by the discrimination legislation.

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SMP if I'm made redundant

There are talks of making redundancies at my work. We as a company sell stationery to companies/offices in London so as you can tell it covid has hit us hard.

My question is, if I was to be made redundant while on maternity leave (I’m only two months into my nine month leave) will I still be entitled to SMP for the full 39 weeks?

I’m worried they will make me redundant and I will lose my entitlement !!

Maternity Action says: Thank you for your query. You remain entitled to the full 39 weeks of Statutory Maternity Pay even if you are made redundant during your maternity leave. Your employer recoups all of your SMP from HM Revenue & Customs and they must still pay it to you. Your employer can get advance funding for your SMP if they need it from their HMRC Accounts Office. I hope that helps.

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Using my appraisal when pregnant to assess redundancies

Hello, my work is currently making redundancies company-wide for a role I do, there is estimated to be 10 redundancies in total. They have advised part of the criteria will be annual reviews and monthly 121s. I am currently on Maternity leave, my concern is early 2019 my reviews will be great as I was not pregnant, the latter half I was pregnant and whilst I did nothing “wrong” I wasn’t going above and beyond anymore, will this be held against me?

Maternity Action says: You are protected against pregnancy discrimination if you can show that you have been treated unfavourably because of your pregnancy or absence on maternity leave. For example, any pregnancy-related absence should not be taken into account in a redundancy situation.

You should also be aware that as you are on maternity leave you have the right to be offered any suitable alternative vacancies (under Regulation 10 of the Maternity and Parental Leave Regulations 1999). In order to avoid you being disadvantaged because of your maternity leave, this should give you first refusal of any suitable alternative vacancies before any redundancy selection procedures. If you have not been offered a suitable alternative vacancy, this may be an automatic unfair dismissal and if this was because of your absence on maternity leave you may also be able to show that this was maternity discrimination.

I hope this helps and suggest that you get further advice if you are made redundant and you think it is as a result of your performance during pregnancy or current maternity leave.

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Facing redundancy because I'm part-time

I am currently pregnant (known by my employer and I had already had risk assessment meetings prior to this) and both my position and myself are in process of being made redundant by my employer. I have a somewhat niche role and work alongside colleagues who can do most of what I do (though not to the same depth), but I only do the work they do at a basic level. The work itself is still there and needs doing, however, they are absorbing this work into the responsibilities of my colleagues and looking to hire further members of staff to do this job. They have said that as I am not at the same skill level as my colleagues, there are no reasonable alternative positions within the company.

I had been working part time since I came off maternity leave one year ago. My employer said that it isn't worth paying a part-time person to do this when the work can be carried by the rest of the team. Prior to having my previous child, I was a full-time employee. I have worked there for more than 2 years.

This seems like a bit of a grey area and I'm not sure if they are toeing the line or if they have crossed it. Any advice would be greatly appreciated, thank you very much!

Maternity Action says: Where there is a reduced need for work of a particular type, there is a fair redundancy situation. This would include where a business decision (however sound) is made that a particular skillset is no longer needed to carry out work in a particular way, or where a particular role can be “absorbed” by others with a different role. That would appear to cover your situation.

I have assumed that the new recruits will be of the same skillset as your colleagues rather than you. If this is the case, the fact that your employer is recruiting does not mean that there is no redundancy situation.

Whilst making a part time pregnant employee redundant certainly raises suspicion, on the limited information I have here, there does appear at least to be justification for the redundancy.

Whether or not the new positions are suitable alternative employment for you will depend on the similarities between the new roles and yours, whether you have the necessary experience and skills to carry out the role, and whether the terms and conditions (including pay) are suitable for you. If there is any doubt, your employer can offer you a trial period.

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Redundancy because I can't do flexible shifts

Prior to going on maternity leave I was aware that there maybe some changes with in my team although this was not confirmed. I work for the NHS and have had an odd email here and there about these changes whilst on may leave but no formal consultation. I was working mon-fri 9-5 but it was verbally agreed that I could reduce my days when I return.

However I have been told in an email that my post no longer exists and they want me to work 3 or 4 12 hrs shifts a week. I have advised them that due to nursery only being set days and closing at 6pm I am unable to work constantly changing shifts. I was asked to submit a flexible working request which I have done but I have been told they are yet to even look at it (I return to work in January) and that there is no guarantee my request will be accepted. To be honest I'm not really concerned about my change in role but I am not happy about my change in working hours.

What are my rights with regards to my job being completely changed whilst on maternity leave without any formal discussion/letters/consultation?

Do I need to escalate my concerns to HR or involve my union at this stage?

Maternity Action says: Thank you for your query. A woman who is on maternity leave is entitled to return to the “same job in which she was employed before her absence.” This means that her terms of employment must be the same as, or not less favourable than, they would have been had she not been absent. The law differentiates between two types of maternity leave – Ordinary Maternity Leave (‘OML’) and Additional Maternity Leave ‘AML’. If an employee has taken a period of AML and the employee cannot return to the same job, the employer must show why it is not reasonably practicable for the employee to return to the same job. The starting point is therefore, that you should be entitled to return to the same role that you left, or one that is offered on no less favourable terms unless your employer has given you a reason as to why it is not reasonably practicable for you to return to the same job. In this case it seems that your existing role has been made redundant because you state that it no longer exists. If your role has been made redundant your employer must consult with you in order to explore whether there are any ways in which your redundancy could be avoided, and also whether there are any suitable alternative roles that you could do. If your employer has made your role redundant it should have followed a consultation process and on the current facts, it does not appear to have done so. Similarly, if your employer has proposed to change your terms and conditions of employment they must consult with you about the changes and ideally seek your agreement to the changes in writing. On the facts you have described this does not appear to have happened.

If you have been made redundant whilst on maternity leave, and ”it is not practicable by reason of redundancy” for the employer to continue to employ you under an existing contract, you are entitled to be offered a suitable alternative vacancy, where one is available, after your maternity leave ends. If you are not offered suitable alternative work and your employment is terminated, you may have a claim for unfair dismissal, constructive unfair dismissal (if you have worked for your employer for at least 2 complete years) or maternity discrimination. Turning to what would be a suitable alternative vacancy, the new role must be:

work that is both suitable and appropriate to you in the circumstances and the capacity and place in which you are now employed; and
the other terms and conditions of your employment must not be less favourable to you than if you had continued to be employed in your old job.

If the role has been made redundant, and you are on maternity leave, you also are given priority in relation to suitable alternative roles (you would have first right of refusal against others that have been made redundant.)

Arguably, the terms and conditions offered to you here are less favourable than under your previous contract because you are now expected to work a shift pattern that is constantly changing, and longer hours. If you do not believe that the role you are being offered does not constitute suitable alternative employment, you may have a claim for maternity discrimination and automatic unfair dismissal and/or unlawful detriment.

If your role is redundant and you are not offered another suitable role, you should be entitled to redundancy pay as if you were not on maternity leave, provided you have sufficient qualifying service. If this is denied to you, you may have a claim for unfair dismissal or maternity discrimination.

In relation to your flexible working request, you are entitled to request flexible working for any reason and your employer must consider this in a reasonable manner and notify you of the outcome within a three-month decision period. An employer has certain prescribed legitimate reasons for rejecting a flexible working request. These include factors such as if the proposed change will have a detrimental impact on quality or if there is an inability to reorganise work among existing staff. There are also other factors too and an employer is under an obligation only to consider the request but not to grant it. If they do refuse your request your employer must have a legitimate business reason for such a refusal. You should also have the opportunity to submit an appeal against the refusal.

In relation to next steps, I would advise you to approach your HR department to ask why you are not able to return to your old role and seek clarity over whether your previous role has been made redundant. I would also ask them if there are any other roles they consider to be suitable alternative roles and note that you do not consider the role they have offered to be suitable due to the working hours and days involved. I would also note that you would be grateful for an update as to your flexible working request. Should you be offered a suitable alterative role, the flexible request may not be needed. In any event, it may be helpful to seek the support of your Union at this stage.

If you require any further support please see further relevant information here: maternityaction.org.uk/wp-content/uploads/Where-to-go-for-more-help.pdf

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Have to do shifts when I don't have childcare or be made redundant

We have been advised that we must all work on a rotational shift like they did to Asda employees recently. If we can't do it, because of childcare or other commitments then we are out. I've accepted the fact that the proposed changes in September will happen because part if their plan has already taken place. So I'm obviously actively looking for another job because I can't do the hours they are saying I will have to. As I have no childcare before school or after 6.

However, is there anything that says they can't do this? I've read something vague about indirect sex discrimination because mothers are generally the people who sort out the childcare.

I have discovered that part-time people who work less than 6 hours a day have been offered fixed shifts, those who do a full 8 hours must do the rotation. I asked why I couldn't be considered the same as other part-timers as I am doing the same amount of hours just in fewer days. They said they couldn't discuss this till consultation period was over.

However, if I apply for flexible working hours during my notice, it could be accepted under my old contract, but then when I opt into the new one id have to apply again I assume. And if this was denied, I'd have to resign because I couldn't do the hours, in turn making myself jobless and not eligible for support or benefits for a long time, is that right?

Another point about applying for flexible working hours, it seems pointless, I can't see them saying yes to me basically requesting hours they've already completely disregarded in the consultations. I gave a list saying I could work any hours or days between 9-6, so not restrictive in my opinion.

I've also read a tiny bit about constructive dismissal but again not sure if I can apply it to my situ.

They will obviously argue that they are doing it as a business need, bums on seats at certain hours. However, a bum is still required for the hours I can do and they have denied.

No union involved, and I've had my final consultation.

Maternity Action says: Thanks for your question about your work imposing a new shift pattern. This is something that employers sometimes do and, as you say, has been in the news recently in respect of Asda for example. The way employers go about this can have various legal implications which I have explained below

Process of changing shift patterns

The method employers use is normally:

Firstly, to see if it already have a contractual right to unilaterally change shifts without emending the contract at all, or seeking employee consent. It is rare that it will have such power for any significant changes, because even if a contract expressly allows it, every employment contract also has an implied term of trust and confidence which roughly means that employers have to act reasonably towards employees.
The second thing employers try is to get employees to agree to the change voluntarily. Sometimes an employer will offer incentives to get employees to do so. If an employee agrees to the change, then that is normally enough for the employer to start using the new shift pattern.

Assuming both of the above steps don’t work, employers then have some choices.

They can decide not to make the change.
They can decide to impose the change and tell employees that they must work under the new shifts. The employer will then wait and hope that all employees follow that instruction.
Some employees reluctantly agree but say that they are “working under protest” which is a way for them to make their objection known and show that despite them abiding by the rule, they are not happy about it and may try and raise a claim later. Often employers will decide to tolerate some unrest in the hope that things calm down and it is not faced with challenges.

If employees refuse to work under the new shift pattern, then they may put the employer in a position of taking disciplinary action against them for not following an instruction and that could lead to the employer dismissing the employee.

Alternatively, the employee may decide themselves that they will not work under the new shift pattern and they have been left with no choice but to resign. This is the circumstances where constructive unfair dismissal is relevant. It only applies if the employer has not decided to terminate the contract and instead the employee has resigned. The employee needs to show the employer acted in fundamental breach of contract and the employee resigned promptly in response to that breach. I have included a bit more information about constructive dismissal below. It is an extreme option and requires employees to resign.

The most extreme option for the employer to take is to tell employees that it is making the change, and that it plans on terminating the old contract, and asking employees to sign up to a new contract with new terms. This forces employees to decide whether to keep their job with the new shifts, or leave. The employee has been dismissed by the employer. The legal reason for the dismissal is “some other substantial reason”. The employer should give notice to bring the contract to an end and start the new one. I think it is this option that has been used in your case.

Unfair Dismissal

To pursue a constructive dismissal claim, you must have two years’ service unless the dismissal is discriminatory (see below). You are also required to show a fundamental breach of contract and must resign promptly in response. If the employer dismisses you, you cannot pursue a constructive unfair dismissal claim.

As your employer has already served notice of the change, you would not be able to pursue a claim for constructive dismissal but instead unfair dismissal assuming you have two years’ service. To defend such a claim, the employer must show that it had fair reason and followed a fair procedure. While from your perspective, the consultation doesn’t seem to have been meaningful, it shows your employer is following a procedure of some sort. While a successful claim is not impossible, it would be a challenge.

In each case, the losses are limited to: (i) a basic award equal to your statutory redundancy pay, and (ii) a compensatory award for loss of earnings which is capped at one year’s pay for most people. Regardless of the limitation, you still need to demonstrate actual loss suffered therefore if you find a new role (or do not try to find one), the compensation available will be limited. As such, the most sensible option and easiest way to ensure income is normally to find a new role as soon as possible. It can be more difficult to establish loss in circumstances where the employer can show it was willing to offer you a role with the same pay albeit different shifts.

Indirect Discrimination

Indirect sex discrimination is relevant when an employer applies the same rule/policy to everyone, but it has a disproportionately adverse impact on one protected group. Requiring employees to work certain hours with a lack of flexibility could amount to indirect discrimination because this requirement could disadvantage women as a group, since women are more likely to want (or need) flexible working for domestic or childcare responsibilities. However, arguments about indirect discrimination are far easier to make out in an organisation with a mixed gender workforce because it will be clear that the female employees are disadvantaged. If the organisation in which you work is predominantly female employees (which we expect it will be), it can be far harder to establish a claim of indirect discrimination. Even if you are able to show that the policy has an adverse impact, it may still be possible for your employer to defend the policy by objectively justifying the need for the new shifts. If the employer can show that the new shift pattern is a proportionate means of achieving a legitimate aim, then it will not be unlawful.

If you succeed with showing indirect discrimination, you would be able to pursue an unfair dismissal claim without two-years’ service. There would be no cap on compensation available (although it would still be limited to actual loss so may not be that significant if you are able to find a new job). You can also get an award for injury to feelings though in the circumstances where you have been affected by a company wide policy, injury to feelings is likely to be at the low end of the scale (in the region of £1,000), if awarded.

What should you do?

Flexible Working Hours

If you haven’t already done so, you should consider making a request for flexible working. In reality it may be rejected but there is no harm in requesting it. Employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. Only one request can be made in any 12-month period. The employee triggers the procedure by making a written request. The employer then has a three-month decision period (which can be extended by agreement) to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome. An employee's application must:

Be in writing.
Be dated.
State that it is an application made under the statutory procedure.
Specify the change that the employee is seeking and when they wish the change to take effect.
Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
State whether the employee has previously made an application to the employer and, if so, when.

The employer must deal with the application in a reasonable manner. If the request is rejected you are entitled to a reason for rejection and a right of appeal. The employer can only reject a request for one of 7 business reasons:

extra costs that will damage the business
the work cannot be reorganised among other staff
people cannot be recruited to do the work
flexible working will affect quality and performance
the business will not be able to meet customer demand
there’s a lack of work to do during the proposed working times
the business is planning changes to the workforce

Failure to approve a flexible working request could be indirect discrimination, however, it is difficult to pursue these claims. In the context of an overall shift change the reality is that a request to work flexibly is perhaps unlikely to be approved.

Grievance

While you could raise a grievance about the situation, unfortunately it seems unlikely in practice that doing so would lead to a different outcome from the one already decided as part of the shift change consultation and any flexible working request.

Counter Notice

If you find a new job before your notice period runs out, and you wish to leave early, you could can ask to be released early. The employer may agree it. You should also check your contract as sometimes it will say that an employee needs to give less notice than the employer to terminate the contract. If that is the case you can serve notice and would only be required to work the shorter employee notice period. You could also decide to leave without working notice. While this would technically be a breach of contract, and your employer could raise an action against you, that is rare in practice. In order to succeed with such a claim the employer would need to show that it suffered a loss as a result of you leaving without working notice and it seems unlikely (although not impossible) that it could do so. You should take legal advice before acting in breach of your contract.

Returning from Maternity Leave

Employee’s returning from maternity leave have certain rights. If an employee returns within 26 weeks, they are entitled to return to the same job that they were employed in before they went on maternity leave. The terms of employment must be the same (or not less favourable) than before leaving. If an employee returns within 52 weeks, then she has a right to the same job (if it is available). If it is not reasonably practicable for her to return to the same job, then she must be offered a suitable and appropriate alternative. Employees on maternity leave (or shared parental leave) also have first refusal on suitable alternative roles in a redundancy situation. However, it can be difficult to establish when this entitlement applies because it depends on the structure of the redundancy exercise.

Conclusion

I hope the above is helpful. As you will see, there are options for you to raise a claim or grievance. However, unfortunately for the reasons stated there is limited scope for success. If the change to working hours means the role no longer works for you, the most pragmatic option is normally to look for a new job that suits better and try to leave on positive terms such that you get a positive reference.

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Had to interview for my job while on maternity leave

I worked part time on a 23 hour contract for a local authority, whilst on maternity leave my sector was closed down and re-structured under a charity with all staff tuped over. The re-structure meant job cuts and mine role went from three people across the borough to one. I was asked to competitively interview for the role that was slightly different in title and duties but about 75% my original role. When I asked about maternity right my new employer said they had a duty to the other two people in my redundancy pool to interview for the job and get the right person.

I couldn’t go to my interview as one of my twins got sick, they then asked for a consultation were they offered to defer the process until I come back from maternity or I still had to interview that week.

I was getting messages from other members of staff saying that the other candidates weren’t happy that I hadn’t got on with the process and they have families and were worried about their jobs. In the end I opted for voluntary redundancy as I didn’t feel I could interview fairly (have been on mat leave for 8 months) against the others and felt pressured not to defer the whole process further for the other candidates.

A lot of people I have spoken to have said the job should have been offered to me at the first instance and none of this should have happened, ACAS thought the same. The new employers HR rep told me the same but their lawyers said because of the wording (it’s not a vacancy) I had to interview like everyone else. I am so confused, and gutted I have given up my job.

Maternity Action says: Your query states that your employment appears to have ended. If this is the case, then your most effective recourse to any unlawful conduct by your employer is likely to involve engaging in Employment Tribunal proceedings (either as a way of pursuing a legal claim or seeking a negotiated resolution). You should note that there is generally a three month less one day time limit from the date of termination to initiate a process called ACAS Early Conciliation. It seems from the below that you have been in contact with ACAS, so you may already have started this. After the conclusion of the ACAS process (which lasts until ACAS issue a conciliation certificate), if you have not reached a settlement with your ex-employer, you would then have a time limit to lodge a claim. It is best to lodge a claim within one month of receiving your ACAS certificate (or quicker if you started the process late).

The rules around this are fact-specific and complex, so you should try to obtain specific legal advice on this if possible.

In terms of your underlying issue, Regulation 10 of the Maternity and Parental Leave Regulations 1999 protects employees who are on maternity leave during a redundancy process. It states that if a redundancy situation arises during an employee's maternity leave and it was not practicable by reason of redundancy for your employer to continue to employ you under your existing contract, then the default position is that you would be entitled to be offered a suitable alternative vacancy.

This is generally considered to give the employee on maternity leave priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination. If an employer does not comply with this requirement, the employee will have a claim for automatically unfair dismissal under section 99 of the Employment Rights Act 1996.

Your situation is not particularly clear cut, and the facts may complicate the situation. On the one hand, your employer may have incorrectly informed you that you needed to competitively interview, which has clearly led to you taking the decision to take voluntary redundancy. On the other hand, the terms of your voluntary redundancy (which are not completely clear from the below) may impact on your ability to make a claim (if for example you signed a settlement agreement to receive an enhanced redundancy payment); or the way in which your claim is presented, you were not technically dismissed by your employer; or the value of your claim (as you may be required to discount any enhanced redundancy payment you have received.

A further complicating factor is that this redundancy process arose during a transfer under the TUPE Regulations. It would generally be safest to bring a claim against both your old employer and new employer, in case any liability attaches to one but not the other. But again, this is a complicated area, that could require specific legal advice.

We would suggest that if possible you seek urgent advice on the time limit for your claim, and if possible seek assistance with the value and presentation of your claims. You should check your insurance policies to see if you have legal expenses insurance cover, as this may cover some or all of the costs of engaging in Employment Tribunal litigation. If you are in a union, you should speak to them about legal advice. You could also check whether you have a local law centre or CAB that can provide employment law advice. We have an information sheet on further advice here: maternityaction.org.uk/where-to-go-for-more-help/

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What's a 'suitable' alternative job?

Is anyone able to help me clarify my understanding of the law when it comes to possible redundancy whilst on Maternity Leave? I work for a large company (100+ employees) that has to cut x amount from the budget which means between 2 and 5 people from my team are at risk.

I am currently on maternity leave and from what I've read it says that although I can be made redundant, my employer has to offer me a suitable alternative job if one comes up, and also I have a right to be notified of all vacancies. My questions are:

Who decides what a 'suitable alternative' is? E.g. if there was a job but my employer didn't think it was suitable or that I was qualified to do it, but I believe I would be, what would happen there?

With regard to being notified of all vacancies, are there any rules about how you should be notified? Apparently, monthly emails are being sent to work emails but I was not told of this and can't log into my work email anyway. Do I have any right to complain about this?

Maternity Action says: The rules around redundancy and maternity leave are generally as you have said.

You can still be made redundant while on maternity leave.
However, you have a right of first refusal for any “suitable alternative vacancy” if such a role is available.
You have the same right as everyone else at risk of redundancy to be notified about any vacancies: you should tell your employer asap that you do not have access to the vacancies.

If you are a member of a trade union, speak with them as they may be able to assist with all of the steps below. If you have a final salary/defined benefit or otherwise generous pension scheme take advice on the value of this as soon as you can because it can be very difficult to replicate that and as such, avoiding redundancy might be all the more important from a financial standpoint.

What happens in a redundancy situation

There are different ways that redundancy situations can be structured when there is a reduction in headcount, and the employer has quite a lot of scope for deciding how to proceed.

(1) One scenario is that the employer is effectively deciding who is leaving. An employer may be reducing the number of people performing a particular role. In that scenario, the employees in the team either get to stay on in the same role, or they are selected for redundancy. In deciding who to select for redundancy, the employer has to use fair and objective selection criteria. They must be careful to ensure that the fact that you are on maternity leave does not prejudice you in any way. For example, they cannot mark you down for pregnancy related absence. If they are taking into account appraisal ratings from a period in which you were off on maternity leave, they need to be very careful about how they score you. It could still be that even after using fair selection criteria, you fall to the bottom of the list and are provisionally selected for redundancy. Unless another job becomes available in the organisation, you can be fairly dismissed as redundant. You are not specially protected because of maternity leave in this scenario. There may still be other vacancies at the employer that you can apply for but you don’t have any special priority to be appointed into those alternative roles.

(2) Another scenario is that there is a reduction in headcount, but the remaining roles are changing a bit more significantly and the employer is instead deciding who is staying. In that case, all the individuals in a team may be provisionally selected for redundancy, but the employer makes some “suitable alternative roles” available. In that case, all employees can apply for these posts. The employer selects in the people who are going to stay. Those unsuccessful with their application will be made redundant (unless some other role becomes available). If the employer uses this method of selecting into new posts (rather than selecting out) then you (and anyone else on maternity/shared parental leave) would have a right of first refusal on the suitable alternative role even if you are not the employer’s first choice. This is what people tend to be talking about when they say that those on maternity leave are protected from redundancy.

There is then also the middle ground which may match your scenario. In that case the employer is mainly deciding who is leaving, but they have other vacancies available generally in the organisation. It is a bit less clear whether remaining roles are a suitable alternative that you should be given first refusal on, or whether they are different enough to just be equally open to everyone at risk of redundancy to apply for. It is then in your interest to be able to show that a role should legally be classed as a “suitable alternative vacancy”.

What is a suitable alternative vacancy?

What that means in practice can be complex. A “suitable alternative vacancy” means that the work under the new contract is both suitable and appropriate for you in the circumstances; and the capacity and place in which you would be employed, and the other terms and conditions of the employment, would not be substantially less favourable to you than if you had continued to be employed in your old job. This is meant to be assessed objectively (i.e. what would a sensible bystander think), looking at whether, having regard to the nature of the job, “status” or perception of job title, content of the new role, and terms of employment, wages, hours and location, and generally whether the job is a match for you.

Effectively what you are wanting to do is show that the role is pretty similar to your current role. It has to be similar enough that if the employer was to try and require you to take the role, it would be reasonable of them to say to you “we think this role is a close enough match to your current role, that if you refuse it, then you need to forfeit your redundancy payment”. You would then only be permitted to refuse a role if based on your particular circumstances, it would be reasonable for you to do so. If any of the roles on the vacancy list look similar enough to your current post that it seems very odd that you haven’t been automatically offered it, then it could be a “suitable alternative vacancy”. The employer is normally the one trying to convince people that a role is a suitable alternative vacancy in order to avoid having to make a redundancy payment, but it would also be open to you to run this argument. You want to be showing why role is very similar to your current role. However, if it is just that you think you could do the role, despite its differences, then you can of course apply for it, but it is just unlikely to meet the legal test of being a “suitable alternative” that you have priority right to.

Notification of vacancies: There is no set rule about how employers need to tell people at risk of redundancy about other vacancies, but they do need to tell you. It seems like this could just be an oversight, and they may not be aware that you can’t access your work email. They need to ensure that you have the same access to vacancies as those who are not off. If otherwise this would be maternity discrimination (and possibly indirect sex discrimination).

I recommend speaking to someone in your employer’s HR team as soon as possible explaining the situation and that you don’t have access to your work emails/the job portal because you are on maternity leave. You can ask that they forward internal vacancies to your personal email address. You can also ask them to send you on a list of any that have recently gone out that you didn’t know about them. If a job that you think you would have had a good chance at has passed you by, then you may want to highlight this, but the reality is it will be difficult to unpick a recruitment that has already taken place. It is more productive to try to keep them on side, and at least initially give them the benefit of the doubt that this was an oversight. As such, I would recommend raising the concern, but not pursuing it as a formal grievance at this stage as that could create unhelpful formality and an adversarial feel.

If a redundancy is confirmed: In terms of minimum statutory entitlements, if you were to be made redundant, you would maintain your Statutory Maternity Pay entitlement until it runs out. You would also be entitled to notice pay, which will depend on your contract and statutory entitlements. You may also be entitled to a payment in lieu of accrued but untaken holiday (which could be significant if you have had a long period of maternity leave).

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Seven weeks pregnant and facing redundancy

I found out that my position is being redundant at some undefined date in the near future. The next day I found out I was 7 weeks pregnant.

I haven't had any official notification of the redundancy yet, I am planning on telling my boss about the pregnancy today - I am now 13 weeks.

Will this change anything?

Maternity Action says: Protection from Unfavourable Treatment

The Equality Act 2010, section 18 says that your employer must not treat you unfavourably because of your pregnancy or maternity leave. This means that your employer must not select you for redundancy because you are pregnant or because you are going to be taking maternity leave.

Redundancy

Your employer can still make you redundant during pregnancy providing it is a genuine redundancy situation and it is not because of your pregnancy or leave. The legal definition of redundancy is where an employer needs to reduce the number of employees because of:

Business closure
Workplace closure
Diminished requirements of the business for employees to do work of a particular kind.

If you think that this is not a genuine redundancy situation and you are being dismissed, you should seek legal advice.

Maternity leave

If you are still employed once you begin your maternity leave and your job is at risk of redundancy you are entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after your existing contract ends. In other words, you have priority for any suitable vacancy. If you are not offered a suitable alternative vacancy you may have a claim for automatic unfair dismissal and should seek advice.

Your rights at work will depend on when you are given notice of being at risk of redundancy. If that occurs whilst you are on maternity leave, you will be entitled to be offered a suitable alternative vacancy. If it occurs beforehand, you will have the right to be consulted with and/or scored (if placed in a pool for selection) with other employees, but with allowances. For example, any scoring criteria such as sickness absence should be modified so that any pregnancy-related sickness absences are not taken into account.

Maternity pay

If you are still employed in the 15th week before your baby is due (when you are about 25 weeks’ pregnant) you may be able to qualify for Statutory Maternity Pay (SMP) from your employer, even if your job ends after then. SMP is paid for 39 weeks regardless of whether you return to the same job. You can find an online calculator here: www.gov.uk/maternity-pay-leave

If your job ends before the 15th week before your baby is due and you are not entitled to SMP, you can claim Maternity Allowance from the Jobcentre Plus: www.gov.uk/government/publications/maternity-allowance-claim-form

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Want flexible working but worried about redundancy

Hello, I was hoping for redundancy advice please. I am 19 weeks pregnant. I have worked at my organisation for over 7 years. In 2016 I went on maternity leave and when I returned in 2017 I started to work 2.5 days a week. Prior to that I had always worked full time for them.

I work for an organisation where 20 of us do the same job nationally and we have all been given notice of redundancy. There is the opportunity for 9 of us to stay in the role, and I have interviewed to keep my job. I am yet to hear the outcome, and it may be a while whilst they interview everyone else.

We have been encouraged to apply for new roles the organisation has created. Half of our accountabilities have been taken away from our role and given to two new roles. Both of these new roles are Full Time. One of the new roles I cannot apply for as they want the post holder to have sight loss and I do not. I have applied for the second new job. When I submitted my application I noted that between now and going on maternity leave in Oct/Nov 2019, I am not in the position to work full time so would need to have a flexible working agreement, for which I said I was very happy to be flexible. On returning from maternity leave i mentioned I am very happy to phase myself back in to full time working. I have been told though by the recruiting manager that flexible working isn’t suited to the job. Given my circumstances, that I am under risk of redundancy, 19 weeks pregnant, and just not able to work full time right now, how much power do I have to question this?

I am further worried that if I did get offered the job, but my flexible working request for between now and going on MAT leave was then turned down, I would need to turn the job offer down. Would this mean I forfeit redundancy pay as a job has been offered to me but I turned it down?

Maternity Action says: It seems from your post that there are a number issues arising out of this proposed redundancy process by your employer.

Redundancy

As you have been employed for over two years, you are protected from unfair dismissal. Your employer is therefore under a general obligation to undertake a fair redundancy process. This requires consultation with at risk employees, and objective criteria for selecting the employees to be made redundant from the pool.

Your pregnancy and upcoming maternity leave also has an impact on this process. You are one of 20 employees being placed at risk of redundancy. From this pool of 20 employees, 11 will be selected for redundancy and nine will remain in post. As there are 11 employees to be made redundant from your pool, it would be hard for you to argue that you are being placed at risk of redundancy because of your pregnancy. However, your employer would need to ensure that your upcoming maternity leave does not to influence the decision on your redundancy. So in an obvious example, your employer would not be able to select you for redundancy because you are due to be on maternity leave in 2020.

A difficulty arises where you suspect that your pregnancy may have had a bearing on the decision to select you for redundancy, but this not expressly stated. This may be the case where an employer follows a process similar to your employer, i.e. by undertaking individual interviews for positions. A more objective process would have been conduct a scoring exercise based on objective scoring criteria. An absence of objective scoring criteria may allow you to build a case that you have been chosen for redundancy because of your upcoming maternity leave. If you are concerned that the decision on your redundancy may be tainted by your upcoming maternity leave, you could seek reassurance to this effect during the consultancy process. For example, you could request that an objective selection process is engaged rather than the interview-based process currently being used.

Your query is silent on whether your part time status will have a bearing on whether you will be selected as one of the nine employees is not made redundant. I.e. have you been informed that the 9 people who remain employed could be full time or part time, or perhaps working on a job share. If you are selected for redundancy and your employer seeks to rely on the fact that you work part-time, you may point to this being indirect sex discrimination. Your employer could seek to justify this decision on the basis that they require full time employees.

New potential role

The basic principle is that if an employee refuses a reasonable offer of suitable alternative employment, then they forfeit their entitlement to a statutory redundancy payment. Whether a particular role constitutes suitable alternative employment depends on a number of factors. When an employer may rely on this provision, the employer will usually expressly state that the role is being offered on this basis. The fact that you have requested part time working in the role, but your employer has stated that it is a full time position suggests that it is unlikely to be considered suitable alternative employment.

You may also forfeit your statutory redundancy payment if you remain employed in this role, but then leave at a later date. For example, if you accept the role on a full time basis, you could be considered to have remained in employment at your employer (albeit you could seek to agree with your employer that you will undertake the role on a trial basis). If you then unsuccessfully apply to work part time, and decide that you cannot perform this role on a full time basis, then this could indeed forfeit your redundancy payment. This is because you may either be required to resign from the role or be dismissed for a reason other than redundancy. It is therefore safest to try to negotiate part time or a job share as part of the redundancy consultation. If this is refused at that stage, then it seems unlikely that this position would change if you then accepted the role. Accordingly, it is risky to take the full time position (if offered) and then seek to negotiate to part time if you would like to guarantee the redundancy payment. On the other hand, if you are able to accommodate full time employment, perhaps with working from home or asking to take annual leave a couple of days a week, between now and the date of your maternity leave, then this may be a reasonable way to ensure that you are employed while you are on maternity leave. You will need to give notice of when you want to start your maternity leave by the 15th week before your baby is due (see below for when that is) and the earliest you can start your maternity leave and pay is 11 weeks before your baby is due.

If you are concerned that your upcoming maternity leave may disadvantage you in the collective interview process, then it is likely to be sensible to put forward the suggestion of an objective selection process as part of the consultation. If this is refused, and you are made redundant, then you should appeal the decision. As part of any appeal you should state that your employer’s choice of process has placed you at a disadvantage because of your pregnancy, in that it was not objective and could easily have been tainted by discrimination. At this stage, you may then wish to seek further guidance on how the situation has developed.

Maternity Pay

Finally, your qualifying week for Statutory Maternity Pay is the week of the 18th to 24th August. As long as you are employed in all or part of that week (even for one day) you can qualify for SMP (providing you meet the other qualifying conditions of length of service and average earnings). Your employer must pay it to you for the full 39 week period even if you are made redundant after the qualifying week. If your employer provides any enhanced contractual maternity pay e.g. tops up your SMP to full pay or half pay, the enhanced pay will usually end when your employment ends unless your employer agrees otherwise or you can negotiate it as part of a redundancy settlement.

If you were to be made redundant and your contract ended before the 18th August, you could claim Maternity Allowance instead of SMP. I hope you have found this helpful.

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Made redundant when my baby was eight weeks

I am looking for some advice on my current situation. I am currently on Statutory Maternity Leave, which is due to end in October 2019. I am permanently employed, with a full time contract and I have been employed by them since April 2016. They are only a small business.

In March, when my baby was 8 weeks old the directors of the company came to visit me at my home, during which they advised me verbally that they were going to make me redundant but they hadn’t sorted the details yet. They confirmed that my maternity pay wouldn’t be affected but that they would be closing the business and selling the premises of which I work. I have contacted them on numerous occasions for some sort of letter with the details of redundancy then I could have something in writing, of which they only sent to me in June (of which I can privately send).

I am confused with the letter as it doesn’t officially state they are making me redundant, and there is an indefinite consultation period. They have advised me that I should look for alternative employment and also said they could possibly continue my post on a part time basis. I personally feel as if I am being pressured and bullied into returning back to work only part time, or more so being pushed to find a new job so that they don’t need to pay me redundancy. They have basically told me that I don't have a job to return to.

During my time on Maternity leave, they contacted me 3 weeks after the birth asking me to work (text messages can be sent privately) and have made me feel extremely stressed, anxious and upset with the prospect of not having a job to return to after my leave. They have also failed to pay me on my contracted pay date in December and again in June, of which I have had to pursue them for the payment. I would be grateful of any advice you could offer on what rights I have or what I should do, Thank you!

Maternity Action says: I am sorry to hear of the difficulties you are facing.

The letter you have received from your employer is placing you at risk of redundancy. A consultation process appears to be underway. They have suggested meeting you as part of the consultation process although no date has been specified. It is unclear from the letter whether it is only your role that is at risk of redundancy.

Redundancy

If you are made redundant whilst on maternity leave you need to consider whether a genuine redundancy situation exists. Redundancy can happen for a number of reasons – your employer has suggested that it is because there are fewer employees required to do your work and that the work of the company will be undertaken from alternative premises.

If you are selected for redundancy for a reason related to pregnancy or childbirth this will amount to an automatically unfair dismissal. It is also direct discrimination if your employer treats you unfavourably because of your pregnancy or having taken maternity leave. If however, you are selected for redundancy for a reason that is genuinely unconnected with your pregnancy then you will not have been unfairly dismissed.

If other employees are also placed at risk of redundancy and your employer applies a selection criteria, it will need to ensure it does not discriminate against you, for example any absences you have had connected with pregnancy/maternity should not be included when scoring you on attendance.

You have the right to be individually consulted even if you are on maternity leave. If you are made redundant without any consultation, you are likely to have claim for unfair dismissal and pregnancy/maternity discrimination. Your employer should consider whether it should extend the consultation period to ensure that you can properly take part in the process. They should also be flexible in terms of how they consult with you such as discussing your potential redundancy at your home, by phone or another convenient location. You may for example propose using your KIT days for attending any consultation meetings.

We have put together a guide on where to get more help if you are unable to resolve your issues. You can find information on where to go for more help once the clinic has ended here: maternityaction.org.uk/advice/dealing-with-problems-at-work/

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Is my junior replacing me?

I have been put at risk of redundancy whilst on maternity leave. I work in a small team.

My employer has selected my role (business development and marketing manager) alone as our main contract is being reduced from September although he advised the detail hadn’t been confirmed) I asked for selection criteria as my maternity cover and junior has not been considered at all but was told they no longer require business development which whilst is in my job title isn’t something I have really ever done and I believe my tasks will just be rolled into my junior who is covering me whilst on maternity leave. They obviously need to make a saving but I can’t get real clarity on what tasks are being removed from the contract to make savings.

Where do I stand with this?

Maternity Action: Thank you for your query. If there is a genuine redundancy situation and your employer follows a fair procedure in selecting you for redundancy, it may be able to fairly dismiss you for redundancy, despite the adverse implications for you and the fact you are on maternity leave. However, if you believe that this is not a genuine redundancy situation, or your employer has not followed a fair procedure in selecting you for redundancy, or that the decision to select you for redundancy was one which no reasonable employer should have made, then you may have a claim for unfair dismissal and if the redundancy is because of your maternity leave, claims for automatic unfair dismissal and maternity discrimination.

Unfair dismissal rights

As you have been at your employer for over 2 years you have a legal right not to be unfairly dismissed. For a redundancy to be a fair dismissal, it must be a genuine redundancy situation and a fair redundancy process must be followed which includes a fair selection process, proper consultation and consideration of suitable alternative roles.

A genuine redundancy situation would include a situation where your employer has a reduced need for employees to carry out a particular kind of work. Your employer appears to have indicated that it has a reduced need for employees to carry out business development and marketing as a result of their main contract being reduced from September and needing to cut costs. However, in order to establish if this is the case, your employer needs to be clearer as to what part of the contract (and therefore type of work) is being reduced and how this impacts on your role of business development and marketing. I therefore suggest you ask for more details as to the rationale for making your role redundant and specifically, whether it is because of a reduced need for business development and marketing in relation to the client contract or a more general need to cut costs? Your employer must also explain how they intend to carry out the role going forwards. Work can be absorbed into other roles but if all of your work is just moving to the junior member of your team, this would suggest that she should have been put in a selection pool with you (for more information, see below). If your employer cannot provide you with a redundancy rationale that shows a reduced need for employees to carry out a particular kind of work, and you are subsequently made redundant, you could potentially claim unfair dismissal (see below for more information) on the basis that there was no genuine redundancy.

In order for the redundancy to be fair your employer must also consider which employees, who are in similar roles and/or who have overlapping skill sets, should be included in the redundancy selection pool. It is arguable that in your situation, as the junior in your team has been covering your role whilst you are on maternity leave, although more junior, she is in a similar role and has overlapping skills and should be included in the pool. Therefore you should ask your employer why they have not included her in the selection pool.

In order for the redundancy to be fair, your employer must also consult properly with you about the redundancy situation and explore alternatives to avoid redundancy before reaching a final decision on whether it needs to make you redundant. This will usually mean your employer will hold at least 2 meetings with you to discuss the situation in more detail. You should use the meetings as an opportunity to:

Discuss the basis for your selection, in terms of the selection pool
Provide your employer with any other information that may influence its final decision.
Put forward any suggestions to your employer of ways to avoid your redundancy – for example you could suggest that the more junior role is made redundant (although they will probably argue that this is not feasible because of cost)
Consider any alternative employment positions that may exist – during the consultation period and at any time before your dismissal takes effect, your employer is obliged to consider you for any suitable alternative vacancies that become available in the business or in any associated companies. As an employee on maternity leave, you have the right to be offered any suitable alternative employment first.
Address any other matters or concerns that you have.

Therefore, during consultation, it would be sensible for you to ask why the junior member of your team was not included in the selection pool given that she has covered your role during maternity leave. However, as your role is being made redundant (and only the junior role will remain), if you do raise this point then you need to be open to the option of taking on the more junior role at a more junior salary and should communicate this to your employer. If your employer is willing to expand the selection pool then in order to determine who is at risk of redundancy, it will have to carry out a fair selection of you and your more junior colleague using fair and objective selection criteria. However, if your employer refuses to do this, without good reason, and you are subsequently made redundant you could potentially have a claim for unfair dismissal on the basis that the selection pool was flawed and therefore the process was unfair.

In order for your redundancy to be fair, your employer must also consider any other suitable alternative roles. As you are on maternity leave, your employer must give you priority for any other suitable roles, above other candidates. If your employer does not do this then you could bring a claim at Tribunal (see below).

Maternity discrimination and automatic unfair dismissal rights

Whilst on maternity leave you have the right not to be discriminated against or treated detrimentally by reason of maternity. In addition, as you are on maternity leave, if you are made redundant because of your maternity leave then you may have a claim for automatic unfair dismissal. For this to be the case you would need to be able to show:

The only (or principal) reason for your dismissal is redundancy;
The circumstances constituting a redundancy applied equally to one or more employees who had positions similar to yours; and
The only (or principal) reason for your selection for redundancy was connected with the fact that you took maternity leave.

Potential next steps

Given that your employer does not appear to have provided you with much information, I suggest you use the period of consultation to ask for more detail about the rationale for the redundancy and why your junior colleague was not included in the selection pool. This will help you to establish if it is a genuine redundancy situation and whether they are following a fair process.

If you are made redundant and you are not satisfied with the answers you have received or the process that your employer has followed you can appeal the redundancy decision - your employer should offer you a right to appeal but if they don’t then you should ask for this opportunity. At an appeal you can challenge the reason given for the redundancy.

Appealing the decision is important if you wish to subsequently bring an employment tribunal claim and it may also encourage the employer to enter into settlement discussions. Settlement is when your employer agrees to pay you an amount of money for entering into a settlement agreement under which you waive your rights to bring employment claims.

Potential Claims

As mentioned above, if you believe that this is not a genuine redundancy situation, or your employer has not followed a fair procedure in selecting you for redundancy, or that the decision to select you for redundancy was one which no reasonable employer should have made, then you may have a claim for unfair dismissal and if the redundancy is because of your maternity leave, claims for automatic unfair dismissal and maternity discrimination. Such claims would be brought at an employment tribunal.

Before bringing a claim for unfair dismissal in the employment tribunal, you would have to contact Acas (the Advisory Conciliation and Arbitration Service) under rules for mandatory early conciliation. Acas is an impartial organisation that will try to resolve any dispute with your employer without the need to bring proceedings in the tribunal. Unfair dismissal claims must usually be brought within three months of the date your employment ends. However, extra time is allowed if you contact Acas to request conciliation.

If you were successful in bringing an unfair dismissal claim then you would be awarded an amount to compensate you for the period of time you are likely to be out of work. This amount is capped at the lesser of one year’s pay or £86,444 for an ordinary unfair dismissal claim. However, a successful automatic unfair dismissal and any discrimination claim is uncapped and you could be awarded more than this, although only if the Tribunal considers you are likely to be out of work for more than a year. In addition, if you could show that your employer’s actions amounted to maternity discrimination then you may also be awarded an amount for injury to feelings (which can be between £900 and £44,000 dependent on the severity of the discrimination).

However, you do not recoup legal costs at Tribunal (although legal costs can be covered under home contents insurance) and it can be an expensive and mentally draining experience so I would encourage you to engage fully in the consultation process and try to get answers to the above questions. If you are still not satisfied, after consultation, then you may wish to seek further legal advice or try to negotiate settlement.

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