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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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My daughter is in the early stages of pregnancy. She has been

Resolved Question:

My daughter is in the early stages of pregnancy. She has been off work with dreadful sickness for the last 5 weeks. She has another week to run on her current sick note. After 3 visits to our local GP, she is not getting any better. She desperately wants to feel better and to get back to work. Her employers are harassing her (in my opinion) by first of all visiting her at her home to ostensibly see how she was. This was followed by another meeting at my daughter's house with her boss and a director of the company to tell her that her position was being made redundant. They have offered her the same job at another branch 80 odd miles away or other junior positions at her current place of employment. After the meeting they have asked for an answer from her within 48 hours. My daughter is at her wit's end with worry on top of her illness. Surely what they are doing is illegal? Any advice please. Thanks. Tom
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has she worked there for?

Customer:

12 years

Ben Jones :

Is there actually a redundancy situation which makes her job no longer in existence?

Customer:

They have created a situation. This is the only position in the company where redundancy applies. My daughter's job is fairly specialised in the company and they have no one else to fill in. Because her illness is on-going without any end in sight, I think they have decided to liquidate it. Its the way they are going about it that sticks in my craw. That and the pressure they are putting her under for an answer. First of all, if you are off work sick then surely you shouldn't be harassed by home visits? Secondly, how can they insist on an answer (and another home visit!) within 48 hours? Surely she should be given adequate time to respond? Last but not least, I also think the company want to avoid paying for maternity leave. After 12 years of loyal service, I think they are behaving despicably.

Ben Jones :

The first issue here is whether this is a genuine redundancy or not. She has the right to know what the situation is and why her job has been identified as being at risk of redundancy.


The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy, which can be found in The Employment Rights Act 1996:



1. Business closure – where the whole of the employer’s business is closed


2. Workplace closure – closure or relocation of one or more sites


3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).


The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:



  • The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).

  • There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)

  • There is less work of a particular kind, but the same number of employees are required overall.


So as long as the employer can show that their situation fell within one of the accepted reasons for declaring a redundancy, the test will be satisfied and the focus then shifts on the remainder of the redundancy procedure. This would include what consultation took place, whether any suitable alternative employment was offered to those at risk and the general fairness of the redundancy procedure applied by the employer.

This takes us to the next issue – they seem to be steamrolling the process to a degree. They should consult with her first before asking for a decision – they need to discuss the reasons for the redundancy, what options are available to her and also consider her current position when asking for an answer – she is obviously under additional pressure at present so the employer must be sensitive to this and allow some extra time if needed.

Finally, if she is being selected for redundancy or generally treated unfairly because of her pregnancy that could amount to discrimination, which she would have protection against. At any time she can raise a grievance with the employer over this and if this does end up in her being made redundant she could also consider a claim for unfair dismissal and/or pregnancy discrimination in the employment tribunal.

As to the home visits, I agree that these should not be happening at this stage and certainly not without her consent. An employer could propose to meet with an employee at their home but if the employee refuses then they should not be visiting as it could indeed amount to harassment.

Customer:

The employer has given a deadline of 3.00pm on Wed. this week regarding a meeting on Thursday which they are suggesting could be at the employer's offices, my daughter's home or an alternative location. This is to discuss a TUPE transfer to the new office and/or a redundancy consultation. This will be with my daughter's boss and another manager via a conference call. As my daughter is currently in no fit state to discuss her immediate future, I intend to contact her employer to tell them that any meeting will have to be deferred until she is feeling better. Do I have to put a date on this ie. say 30 day's from yesterday (when the redundancy letter arrived)?

Ben Jones :

No you do not have to put a specific date and can just advise them that she is not able to attend at present as she is formally signed off sick and that this is a pregnancy-related illness they must be sensitive to this and allow her time to recover before they ask her to make such important decisions

Ben Jones :

I will be going offline shortly I'm afraid and am happy to answer any follow up questions you may have now before I go, thanks

Customer:

Thanks Ben. I think we've got a long way to go before this can be settled. The company have a reputation for being unfair, so getting a reasonable redundancy payment from them will be tough and as for getting anything out of them for maternity leave . . . . ?

Ben Jones :

she needs to have been employed by them by the 15th week before the due date to be entitled to maternity pay. However, if there is evidence that their decision may be based on her being pregnant and an attempt to avoid paying that then she can try and consider offering them the opportunity to consider a settlement agreement where she is paid off to leave and negotiate the terms with them, the alternative to which would be a claim for discrimination which they may want to avoid

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