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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44942
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My partner is on maternity leave. her paid maternity leave

Customer Question

My partner is on maternity leave. her paid maternity leave finishes on 19th January. She is still ill from the birth and this is still unresolved. She is a lot better though. Her job is as an internal recruiter and she works 16 hours per week.
She mentioned to her boss about returning to work and was informed that 8 weeks notice of intent to return to work should have been given. In all the fall out and other things this was overlooked especially as it isn't something you deal with every day. She has kept the company informed of progress throughout and insight of above gave formal notice of return to work on 23rd December 2014.
She has since been in to see her boss who informed her that there is no recruitment needs for her and no other job available for her to return to and to consider redundancy or long term sick. (no one has signed her off and she believes she is capable of fulfilling her 16 hours). We are currently getting advice. They have offered £5000 but have refused to break it all down. Her official salary is £9500ish. At present she has 6 weeks holiday to take and is 42 years old. Is this enough? Can they make her redundant. There has been no consultation. CAB suggests tribunal which is a route we would like to avoid. What are our options legally? She has a meeting with her boss tomorrow and would like to go armed with legal facts. It is our understanding they have to offer her a job back even if different from the role she had? Also if they want her to go surely she should be entitled to more?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year 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?
JACUSTOMER-a724u55a- :

She cas continuous service for 2009

JACUSTOMER-a724u55a- :

Hello, I am checking to see if you have managed an answer for us?

Ben Jones :

Hi, sorry I had some connection issues earlier. I will get an answer out to you this evening, just about to travel home so will respond when I am back. You will have the information in good time before the meeting tomorrow

Ben Jones :

Hello again, according to Reg. 18 of The Maternity and Parental Leave Regulations 1999, an employee who takes Additional Maternity Leave (i.e. between 6-12 months off) is entitled “to return 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.”

This means that there is no guarantee of a return to the job she performed before going on maternity leave. If the employer can show that it is not reasonably practicable to allow her to return to that job, they need to find her something that is both suitable and appropriate for her to do instead.

A common issue that arises is whether the reason for not being reasonably practicable to allow the employee to return to her old job is actually justifiable. Case law has suggested that formal reorganisations can amount to a justifiable reason, whereas a simple preference over someone providing maternity cover will not suffice.

It is also possible for her to be made redundant, as long as the employer follows a fair redundancy procedure, shows there is a genuine redundancy and that there are no other alternatives available, as well as ensuring that she is not selected for simply having been on maternity leave.

If they want her to go they could offer her a settlement, like they have done, but there is no hard and fast rule of how to calculate that – in the end it would be a sum they are willing to pay and she is willing to accept. But as a minimum I would say she should look at her notice period (which must be a minimum of 5 weeks), her outstanding holiday pay and perhaps the equivalent of her redundancy pay (she can calculate that here: https://www.gov.uk/calculate-your-redundancy-pay)

In terms of taking the matter further, the following options are available:

:



  • If she is unreasonably being denied the opportunity to return to her old job, that could amount to pregnancy and maternity discrimination and/or unlawful detriment

  • If she has been given an alternative job which she finds unsuitable, then she could resign and make a claim for constructive dismissal and/or sex discrimination.


Each of the above claims will be made in the employment tribunal and she can seek compensation for loss of earnings and/or injury to feelings. Before she goes to tribunal she will have to go through ACAS and try to negotiate a settlement so there are further negotiating opportunities before she has to make a formal claim.

Hope this clarifies your position? If you could please let me know that would be great, thank you

JACUSTOMER-a724u55a- :

The answer is pretty much what we have found out. They have not offered any consultation. The matter was brought up at a meeting she requested. If we hadn't requested the meeting then who knows when it would have been brought up. The recruitment arm of the company is no longer and they have moved the other person to another job. They have deemed that her job therefore no longer exists and to quote her boss "there are no other roles available, and, the office is maxed out in terms of space" Yet they are still advertising for and admin assistant on their website (which we took a screenshot of yesterday). Obviously there was no warning of impending redundancy and this it seems is both unfair and possibly discriminatory They have made it quite clear (by email) that they don't want her back... CAB seem to think she has a case based on what has happened. She is meeting her boss this morning away from the office to discuss the offer and as a settlement to demand more or a job.

Ben Jones :

If there are genuinely no suitable jobs for her then the employer may have to go down the redundancy route although the consultation for that is still required. They may be advertising for an admin assistant but if that is not a suitable job for her they do not have to offer it. There are certainly arguments she can raise to try and negotiate a settlement but if she is unhappy with the offer on the table as mentioned she also has the help of ACAS to try and conduct further negotiations before she considers the tribunal route.

Please let me know if you need any further help from me as would be happy to assist?

Ben Jones :

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? Thanks

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