Is this unfair dismissal?

boongywoongy

Ok, here's the situation.

Employee X goes on maternity for a year (9 months statutory and 3 months unpaid leave) but after 11 months and before she returns, she gets told by her employers that her role is redundant and that she is being given 3 months notice after which her employment with the company will be terminated. She is offered a Settlement Sum if she signs a Compromise Agreement (which effectively means that she will agree to go off quietly without causing a legal fuss).

There's nothing insulting about the figures but I have a gripe about the circumstance about what has happened which I think, at the very least, is a bit unfair.

More details:

Employee X actually worked in a support role and when she went on maternity leave, the employers brought in a temp to cover the 3 staff that she supported. During the maternity period (and this is my gripe), they made the temp. permanent and although (as the employers now say), her role has changed, she is still supporting at least one of the original members of staff that employee X supported when she left for maternity. As the employers won't take employee X back, hasn't the employers in effect hired someone to replace employee X whilst she was on maternity leave (albeit only covering a third of the original role)? To make employee X redundant whilst hiring and retaining the temp cover to partially perform that role seems a tad unfair to me.

Do you think there is a case to be answered for unfair dismissal? What are you thoughts on this or do you think I'm barking up the wrong tree here?

olly300

There is a case for sex discrimination rather than unfair dismissal as she is being made redundant for basically having been on maternity leave.

The compensation for sex discrimination claims is theoretically unlimited which is why employers tend to offer seemly generous compromise agreements.

I suggest the person concerned talks to an employment solicitor and asks them if they would potentially be able to get more money i.e. up to a years salary if they disputed the agreement.

Calvinandhobbs

olly300 wrote: »

There is a case for sex discrimination rather than unfair dismissal as she is being made redundant for basically having been on maternity leave.

The compensation for sex discrimination claims is theoretically unlimited which is why employers tend to offer seemly generous compromise agreements.

I suggest the person concerned talks to an employment solicitor and asks them if they would potentially be able to get more money i.e. up to a years salary if they disputed the agreement.

No, OP is correct, it would be a claim for unfair dismissal, it would then be argued that the reason for said dismissal was Sex Discrim. Any employer who makes a pregnant/new mum on mat leave redundant is a fool, they should be very nervous and either back down or agree to generous CA. Make sure your friend keeps a diary of everything and gets some good legal advice ASAP

BlueIsTheColour

Take a look here, it explains the rights for you

http://www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Pregnancyandmaternityrights/DG_175088

boongywoongy

Hmmm...interesting responses. Thanks.

Not being from a legal background, I have been uncertain whether the employer has done anything illegal (either way I still firmly believe it to be very short sighted of them to hire someone in this economic climate whilst knowing that a staff member is due to be returning from maternity leave at some point) and assumed that it would always be difficult to prove that employee X's role had not been made redundant. In addition to this, the thought of going to litigation is also a massively daunting prospect as the employer in question is a global financial services company known for their ruthlessness.

With respect to the paragraphs relating to redundancy whilst on maternity leave from the previous post (thanks BTW), I still find it somewhat grey:

"Redundancy
It is automatically unfair and automatic sex discrimination for your employer to select you for redundancy for a reason connected with:

• maternity leave
• birth or pregnancy
• paternity leave
• parental or dependants leave

Your employer can make you redundant while you are on maternity leave if they can fairly justify their choice. For example, if your employer is closing a section of their business that you normally work in and making all employees in that section redundant, your employer can make you redundant as well. However, if your employer needed to make staff cuts across the company, they cannot make you redundant because you are on or about to go on maternity leave.
If you are made redundant whilst on maternity leave then you have special rights. Even if you do not have the normal two years service, you have the right to be offered any suitable alternative job in the company. This is even if there are other employees that might be more suitable for the job. If you are offered a new job, then you are still entitled to the four-week trial period, which should start when you return from maternity leave.

If you are made redundant during your maternity leave your employer must give you a written statement explaining their reasons for the decision. You should also receive your normal notice period or pay in lieu of notice and redundancy payment, if you are entitled to receive them. "

Isn't it going to be difficult to argue that the redundancy is due to employee X going on maternity leave? I'm sure that they will just argue that her role is just no longer available for her to return to. They have also given her 3 months (generous) notice of termination which I presume is the period that she should be looking for another role in the firm (although admittedly, I think that the onus should be on the firm to do so). As with the other post-ers, I would like to advise employee X to take this matter further but there is a financial loss at risk (the Settlement Sum) and I don't want her to jeopardise this (and her personal savings for the legal fee's) based on some paragraphs which to my mind is still not clear enough to feel 100% confident. Regardless of the figures involved, my stance has always been about whats right and wrong. No company, however large, should be allowed to act above the law and dismiss people unfairly (on maternity or otherwise) but unfortunately, cases are never as clear cut or simple to prove are they?
Any other further thoughts on this matter?

BlueIsTheColour

It is possible for a role of a person on maternity leave to be made redundant if that work ceases or diminishes, so if there is still that role is still available it would not be a redundancy situation. Was there anyone else in the pool or who does the same job? If so, basically they have to be made redundant not the person on matt leave.

If this is not the case, they have a right to be offered a suitable alternative role within the company, you mention it is a big company so are there other roles that the person has the skills for? If so they must be offered that role ahead of any other employee, and they shouldn't be made to apply for it, it should be offered to them automatically.

Does this help?

BlueIsTheColour

This may make it a bit clearer, its the advice for the employer....

http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1080903562

boongywoongy

No, there was no one else in the pool that they could have made redundant ahead of employee X.

Also, the following two lines from that link is somewhat discouraging too:

"If you end up making an employee on maternity leave redundant because you had no suitable alternative work to offer her, the dismissal may be fair."

"However, a dismissal may be potentially fair if, on the employee's return from additional maternity leave, you could not offer her her old job or you - or an associated employer - offered her suitable alternative employment which she unreasonably refused."

So far, the employer hasn't offered any alternative job and employee X has emailed to ask them the selection criteria for making her redundant. No response yet.

BlueIsTheColour

I think she has done the right thing, putting her concerns in writing to them is the first port of call definitely. She could also try finding out if there any vacancies with the company that she thinks she could be suitable for, that way, she has all the info at her disposal, so if they say they have nothing, she can say, so what about this role etc etc

I wouldn't be too worried yet about the sentences you highlight, a big company would have to go a long way to prove they had nothing suitable for her, but yes, if she did refuse a role that was suitable, similar duties, same T&Cs, then yes she wouldnt have too much she could argue against. Plus dont forget this is all at the point of her return, so if she still has 3 months left to go, how do they know for definite what they will or wont need? Although this must be sorted before she returns or attempts to return, as once the matt leave period is over the protection goes.....

http://www.worksmart.org.uk/rights/will_i_have_the_same_job_when

olly300

Calvinandhobbs wrote: »

No, OP is correct, it would be a claim for unfair dismissal, it would then be argued that the reason for said dismissal was Sex Discrim. Any employer who makes a pregnant/new mum on mat leave redundant is a fool, they should be very nervous and either back down or agree to generous CA. Make sure your friend keeps a diary of everything and gets some good legal advice ASAP

Which falls under the sex discrimination laws.

If you make someone redundant unfairly and the reason for that dismissal can be proved to be due to discrimination it falls under the relevant discrimination law.

Normally solicitors will cover all bases and put in a claim for both unfair dismissal and sex discrimination leaving the tribunal to decide whether either or both claims are valid. This is why the OP's friend should have a proper talk with an employment solicitor.

And it is legal to make someone redundant whilst on maternity leave or straight after but the process and selection procedure must be fair. However the fact that the employer is offering a generous compromise agreement means they know there is a potential sex discrimination claim.

Calvinandhobbs

Sorry wrote post very quickly, I didn't say it was illegal to make a fair redundancy, but am amazed that any employer would do so, it is so risky!