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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 a part-time employee who is currently on maternity leave

Resolved Question:

I have a part-time employee who is currently on maternity leave and receiving SMP. It is likely that the location that she was employed at will no longer be open when she is due to come back off maternity. I would like to know what my legal obligations are in finding her another role at one of our other branches. At the moment we are fully staffed.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. can you please tell me how long she has been employed by you
Customer: replied 3 years ago.

Hi Ben,


 


The lady originally started with us on a fixed term contract from 1st May until 31st October 2012 working full-time. She then came back in February 2013 on a part-time basis, 3 days per week and has been with us since then continuously, going on maternity leave at the end of January 2014. We have been paying her SMP every month since then. The issue we have is that the location she has been employed at is closing at the end of this June. We do have another location we could in theory employ her at, but it is fully staffed right now. I know I have to keep her job open, but are there exceptions to this rule or will I have to pay her redundancy or something if she wants to come back to work at the end of her maternity leave.

Expert:  Ben Jones replied 3 years ago.
Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.
Expert:  Ben Jones replied 3 years ago.
Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.

Her rights will depend on whether the redundancy arises whilst she is on maternity leave or after she returns.

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 so be careful.

If the redundancy does not arise until she returns, then she can be treated in the same way as anyone else that is affected by this and you must ensure there is a fair selection of those to be made redundant. If she is the only one doing her job then that would be relatively easy but you would still have a duty to offer her suitable alternative employment to try and avoid redundancy. If no such vacancies exist you do not have to create one, you can simply make her redundant.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 3 years ago.

Hi Ben,


 


Thanks very much, this basically confirms what I suspected that my employee should be treated as if the role is disappearing while she was at work, so redundancy regs. and process would apply. She is due to come off maternity after the location has closed.


 


The location that is closing is in Kingston Upon Thames and the alternative location where I could theoretically offer her the same role is in Clapham. Her (train) journey to Clapham would be longer than to Kingston - about 30 minutes longer I think - so would this be seen legally as an appropriate substitution, do you think? I currently have the same role there filled by a fixed term contract currently terminating at the end of July, so I could negotiate a new fixed term contract to take that role up to the date when my maternity leave person is due to return.


 


One final question; if my employee on maternity leave decided in the end that she did not want to return to work, would that then absolve me from any obligation to pay her redundancy?


Thanks, Doug.

Expert:  Ben Jones replied 3 years ago.
Hi Doug

You are expected to offer her any suitable alternative employment that exists to try and avoid making her redundant. There is nothing in law that defines what exactly is suitable and it would always depend on the individual circumstances so would be quite subjective. It basically depends on the employee’s position, the difficulty in getting to the new place, the additional timer and expenses and these would also depend on their personal circumstances. For example, now it may not have been too much of an issue, but once she has her child it may become more of an issue so these are all relevant factors. It is for her to decide but you can obviously challenge it if you believe it is suitable.

In terms of a decision not to return to work, you can only argue that she is not entitled to redundancy if you have offered her a suitable alternative position and she has unreasonably refused it. However, if the alternative was not suitable and she reasonably refuses it, then you must still pay her redundancy.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46794
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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