Refusing Suitable Alternative advice

katslater_2

Hi All,
I'm new to this but hoping for some advice. I've worked for my employer for 15 years. Had a great relationship with previous board of Directors. Whilst I was on Maternity Leave a new MD was appointed and I have now been made redundant and have not returned following maternity.
My Employer is now refusing to pay redundancy as they say I have unreasonably refused alternative.

THe original alternative was in a different town and was was unsuitable as it would cost me more in childcare etc. After a month of nasty bullying emails from them saying that if I don't take up alternative they will class me as resigned, AWOL, misconduct etc, they have now offered me a job (different title but basically the same job) in my old office.

I have now refused this because it would be impossible to go back after the tone of correspondance. All the loyalty has gone.

Would anyone know if I have any case for a tribunal at all? Thanks in advance for any advice.

SarEl

I presume that you have kept all the e-mails etc? If so then yes, you should make a multiple claim:

Unfair dismissal and sex discrimination - on the basis that you were made redundant whilst on maternity leave (naughty, naughty), the employer failed to allow you to return to your job (your legal right under reg 10), and failed to find you suitable altrenative employment

Then failure to pay redundancy

And if the e-mails really are as nasty as you say (and be honest - objective view and not subjective!) then I would also throw in harassment for seeking to exercise a statutory right (your right to return to work or have redundancy pay).

Doing it this way means that the employer has less wiggle room. One of these things is true - they cannot all be untrue. You have three months less a day to submit your claim, from the date of the action or last action you are complaining about - do not let it get out of time.

Pete111

Quick Q SarEl

sorry to jump in on the thread but I have made people redundant whilst on maternity previously. I have been advised that this can be done legally (by my lawyer) but needs to be 100% watertight. (we did compromise the individuals out however)

Your comment above indicates otherwise - can you expand pls?

katslater_2

Pete111, what more info would you like? I have been on Mat leave since June last year. recieved letter advising of potential redundancy in feb, was due to return on 2nd May, but they were insistent that I had to go to the different town and trial the alternative. I kept telling them that such a move would leave me out of pocket, so have never returned as my job was officially made redundant in my consultation meeting on 5th April. between then and now it's just been disputing the alternative, them saying I'm being unreasonable, then saying that they'll treat me as on unathorised absence, etc.... Have been following advice from ACAS, I queried the original redundancy package as the figures were wrong and after that this new role was discovered. I have never had any problems with them at all until now.

SarEl

Pete111 wrote: »

Quick Q SarEl

sorry to jump in on the thread but I have made people redundant whilst on maternity previously. I have been advised that this can be done legally (by my lawyer) but needs to be 100% watertight. (we did compromise the individuals out however)

Your comment above indicates otherwise - can you expand pls?

I didn't say it was impossible - but as you have observed, it has to be 100% (preferably 110% watertight and this one appears to leak like a sieve. Starting with the fact that I assume that you didn't attempt to make your employee relocate work to another town and refuse her redundancy pay when she very reasonably declined?

Reg 10 of the The Maternity and Parental Leave etc. Regulations 1999
states that:

10. - (1) This regulation applies where, during an employee's
ordinary or additional maternity leave period, it is not practicable
by reason of redundancy for her employer to continue to employ her
under her existing contract of employment.

(2) Where there is a suitable available vacancy, the employee is
entitled to be offered (before the end of her employment under her
existing contract) alternative employment with her employer or his
successor, or an associated employer, under a new contract of
employment which complies with paragraph (3) (and takes effect
immediately on the ending of her employment under the previous
contract).

That means that any and all suitable alternative vacancies in the company were hers for the taking, but the employer chose to offer only a job that was unsuitable, and then refused redundancy pay when she refused it.

The basis of my advice was to submit a multiple claim rather than a single one, because, as I observed, the employers position is untenable - either they failed to consider other suitable vancancies in her office (and it is suspicious that one suddenly appeared, don't you think) and deliberately offered her a post which they knew she could not take because they wanted to make her redundant because she was on maternity leave, or they have refused her rightful redundancy payment. It is one or the other. Obviously, I would also want to know excatly what happened with the redundancy process and whether that was fairly conducted - I doubt it, based on their actions elsewhere.

katslater_2

Thank you SarEl, its so difficult because I definitely believe the new MD simply wanted me out.
I have worked in the co long enough to know their processes with redundancies (not good). Last year I was informally told they were going to make a colleague redundant (She was on mat leave and knew nothing about it!), a few months later I told them I was pregnant. The original colleague has not been made redundant and now I'm in the firing line!

They gave me redundancy figures which I queried and after that the new job was proposed. In the past I have been advised that they wanted to make someone else redundant, but decided against it as the redundancy pay was the equivalent to his annual salary so it was pointless!

The redundancy process apart from one meeting has all been done on email, so everything is documented, they are arguing that I am unreasonably refusing the alternative. The first alternative was in a different town and the second is back in my office but I would have to work with the people who have happily slated me and tried to force me to resign.

I feel surely I should be entitled to the redundancy compensation. I'm not really sure what process I should follow now, but I'm very greatful for all your advice.

ILW

Surely if they offered you a similar job at your preferred location, they have fulfilled their obligations. I do not think you can claim compensation due to not liking the atmosphere.

SarEl

I think that if the e-mails have been as the OP has stated, then it would be entirely possible. Having attempted to force her into a job which was clearly not a suitable alternative employment, then she has cause to say that trust and confidence have been breached.

The first step would be to submit a grievance outlining why this psoition is untenable and stating that trust and confidence have been brecahed, using copies of the threats used to try to force you into an unsuitable job as evidence. Make it clear that you are now seeking severance because you cannot trust the employer and you are offering them an opportunity to resolve the matter before consdiering legal action for sex discrimination and unfair dismissal. I have often found that slipping in a line that starts, "My legal adviser has told me..." or words to that effect are highly effective. If they truly believe that you will sue at tribunal, they are more likely to roll over

ohreally

ILW wrote: »

I do not think you can claim compensation due to not liking the atmosphere.

Perhaps katslater is suggesting due to previous events the relationship between the parties has deteriorated to the position where it has irretrievably broken down and she feels the situation is untenable from a personal perspective.

Pete111

SarEl wrote: »

I didn't say it was impossible - but as you have observed, it has to be 100% (preferably 110% watertight and this one appears to leak like a sieve. Starting with the fact that I assume that you didn't attempt to make your employee relocate work to another town and refuse her redundancy pay when she very reasonably declined?

Reg 10 of the The Maternity and Parental Leave etc. Regulations 1999
states that:

10. - (1) This regulation applies where, during an employee's
ordinary or additional maternity leave period, it is not practicable
by reason of redundancy for her employer to continue to employ her
under her existing contract of employment.

(2) Where there is a suitable available vacancy, the employee is
entitled to be offered (before the end of her employment under her
existing contract) alternative employment with her employer or his
successor, or an associated employer, under a new contract of
employment which complies with paragraph (3) (and takes effect
immediately on the ending of her employment under the previous
contract).

That means that any and all suitable alternative vacancies in the company were hers for the taking, but the employer chose to offer only a job that was unsuitable, and then refused redundancy pay when she refused it.

The basis of my advice was to submit a multiple claim rather than a single one, because, as I observed, the employers position is untenable - either they failed to consider other suitable vancancies in her office (and it is suspicious that one suddenly appeared, don't you think) and deliberately offered her a post which they knew she could not take because they wanted to make her redundant because she was on maternity leave, or they have refused her rightful redundancy payment. It is one or the other. Obviously, I would also want to know excatly what happened with the redundancy process and whether that was fairly conducted - I doubt it, based on their actions elsewhere.

Cheers for that - it dovetails with my understanding.

FWIW I wasn't disputing the OPs case - Like youI think they have a strong argument here.

unholyangel

As for the sex discrimination, it was my previous understanding you can make them redundant providing that you arent making them redundant because of the maternity leave. To not consider them in the selection pool because of the maternity leave could give other employees grounds for sex discrimination/unfair selection process claims.

As for the atmosphere, I would get legal advice. If you go to a tribunal they will basically be looking to see if you have acted in a reasonable manner. Before walking out of my job i consulted friends, family, CAB, ACAS and a lawyer to make sure that my judgement in their behaviour and offers was reasonable and that i wasnt perhaps looking at it in a different light than a outsider due to the personal nature of it.

You would have to show that their behaviour has broken their "duty of care" to the extent that the contract no longer exists.