Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is Ben and it is my pleasure to assist you with your question today. Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long she has worked there.
According to Reg. 18 of The Maternity and Parental Leave etc. Regulations 1999, an employee who takes additional maternity leave (i.e. between 6-12 months off) is entitled “to return from leave to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.”
So as you can see there is no guarantee of a return to the job she performed before going on maternity leave. If the employer believes that it is not reasonably practicable to allow her to return to that job, for example because of redundancy, they need to find her something that is suitable and appropriate for her to do in the circumstances. If no such opportunities exist then it could come down to her being made redundant, in which case they will need to follow a fair redundancy procedure.
When a redundancy situation arises, an employer has a duty to consider and offer the affected employees any suitable alternative employment (“SAE”) that may exist at the time. The objective is to keep the employee in employment rather than make them redundant.
If an employee accepts an offer of SAE, their employment will continue in the new position and they would lose their entitlement to a redundancy payment.
If the offer is considered unsuitable and the employee refuses it, they will still keep their entitlement to redundancy pay. However, if an offer of SAE has been made and the employee unreasonably refuses it, they would lose their entitlement to redundancy pay.
The factors that would usually make an offer unsuitable or a refusal reasonable are as follows:
If the employer makes an offer of alternative employment, where the terms and conditions differ from their current ones, the employee has the right to a 4-week trial period in that job, which can be extended by mutual consent. If during or immediately after the trial period they decide against taking the job then they should tell their employer straight away. This will not affect their employment rights, including their right to receive statutory redundancy pay.
Therefore if she does not believe that the job they have offered her is suitable and there is nothing else she considers amounting to SAE, she can request redundancy.
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