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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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i have been informed that i am at risk of redundancy due to

Resolved Question:

i have been informed that i am at risk of redundancy due to an organisational restructure. i am currently on maternity leave. I have been with my organiation for 5.29 years. I work a 3 day week. I am not sure whether my organisation is playing fair - few questions below:

1. original i was told i was at risk because my role had closed and it had been replaced with a new full-time role, which i had to apply for. I fought this in my consultation and won. my employer has said the job is mine but only if i come back full time. i had to request a few times for clarification if i was still at risk, they are now claiming i am at risk because i can not take the role on full time. the change in reason for me being at risk seems a little underhand - Is this fair?

2. I was shown a list of full-time vacancies, which I was told I could apply for like everyone else. Is this deemed a suitable alternative? what happened to positive discrimination?

3. cmmunication - I don't feel i have been fairly included in the wider redundancy communications. there are staff representatives and a forumn but i have not been informed of when the meetings are or sent any notes. there was also an email sent to colleagues saying i was no longer a risk and the post in question was no longer vacant. i questioned why i hadn't been included and was given a vague answer about them not using my personal email address and that i am not part of the group consultations - which i dont understand (why does my case appears to be the only individual one?). when enquiring whether i was still at risk HR and my director kept changing who responded. Does this seem fair?

4. They are offering a PILON but only at SMP rate. My contract states i have a two month notice period and any payment in leiu of notice will be equal to my basic salary (subtract to NI and tax). Am i therefore not entitled to receive contractual notice at my basic salary rate (i have read that my employer can offset this agaist SMP)?

5. i proposed a compromise if they couldn't find a way to make my hours work in the new structure. this was discussed in a without prejudice meeting. i received a proposal on wed 19th feb outling 3 choices; redundancy package ending my employment 31st march, settlement package ending my employment 28th feb or return full-time after my mat leave in aug. i have until tues the 25th to make a decision (6 days). i) is 6 days a fair amount of time? ii) if they are doing everything by-the-book it makes me suspicious that they would entertain a compromise/ settlement. they have also used our without prejudice discussion to try and cover other conversation that were not included in that meeting. do you think i am reading too much into this?

I have found the whole process very frustrating and a constant battle. I am at the brink of giving up and taking their settlement proposal (which isnt great) as I no longer wish to return to my employer following this process. But I want to ensure I leave with the best package available to me. Are they playing fair? should i take the best package they are offering or is it worth pursuing?

thank you for your time.
rachel
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. I will consider your questions in more detail and get back to you on here shortly

Ben Jones :

Employees who are on maternity leave have certain rights if a redundancy situation develops whilst they are away. The Maternity and Parental Leave Regulations state that if "it is not practicable by reason of redundancy" for the employer to continue to employ an employee under her existing contract, the employee is entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after her existing contract ends. This also includes a vacancy with an associated employer.


 


If the employee is offered a new contract so that redundancy is avoided, then it must meet the following criteria:



  • The work to be done is both suitable and appropriate for her to do in the circumstances.

  • The capacity and place in which she is to be employed, and the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed in her old job


 


When a redundancy situation exists, the employer has a general duty to try and offer those who are at risk of redundancy any suitable alternative employment that is available at the time. However, the Regulations effectively give employees who are on maternity leave priority over other employees when such offers are made. If a suitable alternative position existed, it should be offered to the employee on maternity leave first, before being offered to others. Failure to do so would breach the statutory regulations and can also amount to discrimination because of pregnancy and/or maternity.


 


Now, if the role is genuinely required to be full time and you are unable to work full time, for example because you want to work flexible hours after your return, this should not automatically discount you from the running, especially if the employer can adjust your hours or get someone else to cover the extra work whilst you are working par time. But that does not mean they have to make drastic changes to the way they operate and need this job to work – if it is not going to work then it is just not going to work


 


In terms of the communications on relation to the redundancy process, you need to be treated the same way as others and not be prejudiced because you are off work. So if there are meeting being held you should be given details so you can attend if possible but if you can’t, then you should be asked for your views beforehand and given notes of what was discussed.


 


The PILON amount – if your contractual notice period offers you at least a week longer notice than the minimum statutory notice you are entitled to, then you only get paid what you are due at the time the notice is served, whether that is sick pay, SMP, etc and not your usual salary. With 5 years’ service you are entitled to 5 weeks’ notice under law. If your contract gives you 6 weeks or more, then you only get the current pay you are due during your notice period, not your usual pay.


 


The compromise time limit – nothing in law to say what is fair what is not, if the employer really wanted they could give you a day’s notice to decide – this is a without prejudice conversation, neither party is bound by it or can be forced to engage in these discussions. If they want to make an offer they can decide the terms, including a deadline by which to accept or reject.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Customer:

H BEN

Customer:

Hi Ben

Customer:

a couple of this are not clear to me

Ben Jones :

ok let me know which parts

Customer:

Hi Ben - are you saying that the what they have offered me is a suitable alternative or not?

Ben Jones :

No, but they have a duty to offer you anything that is available and is suitable. Obviously if there is nothing suitable then they cannot offer it to you and you do not have to accept it

Customer:

ok - so i can't go back full-time and there are no suitable alternatives. So i am therefore at risk of redundancy like everyone else, is that correct?

Ben Jones :

yes, although as mentioned if a suitable vacancy does exist you get priority over other employees

Customer:

so if they have done everything above board, do you think it is strange for them to offer a settlement (albeit not much different to my redundancy package?)

Ben Jones :

not necessarily - some employers just like to have peace of mind - with a settlement they know you cannot sue them in the future and it is a clean break, but if needed you can try and push them for more for giving up your right to sue

Customer:

ok last question (i think) from what i have described, although it seems unfair in parts would you say its all above board and my best plan of action is to take the settlement .. or is there anything you can think of hat may help me to enhance my settlement

Ben Jones :

there are things they could have done better, like the communication whilst you were off but you have to consider whether it would have changed anything had they done it the correct way. Assuming that there are no suitable vacancies that are not being offered to you, then mostly it would be above board so if you can try and negotiate a fair settlement (always try to push them for a bit more as the first offer is rarely their best)

Customer:

a 'fair settlement' is subjective isn't it? i currently don't think it is fair because moneys i am owed are reduced by the fact i am on maternity leave

Customer:

sorry i hit return .... 'but thank you for your help and i will see what i can get

Ben Jones :

yes it is - in the end it is an amount you are happy to accept and they are happy to pay. But remember that in this case what they are offering is legal, they are not paying you less for unlawful reasons

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45315
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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