Precedent 3: Redundancy while on maternity leave

Redundancy while on maternity leave – unfair redundancy dismissal; failure to offer existing vacancy

This precedent covers these issues

• Redundancy dismissal and failure to offer suitable available vacancy.
• Failure to consult about the redundancy.
• Redundancy pay.
• Notice pay.

Box 8.2 of tribunal claim form

1. I started work for the Respondent television production company in October 2016 as a publicity officer. I transferred to the marketing department in December 2018 to broaden my experience.
2. In November 2019, I notified my manager, Karl Woods, that I was pregnant and that my baby was due on 12 May 2020. I said I wanted my maternity leave to start on 1 April 2020 and I intended to come back to work afterwards. Mr Woods said he hoped I wasn’t intending to take the full 12 months. I said I would come back after 6 months if he would prefer. Mr Woods said it was a pity I had got pregnant before I had the chance to build up any real experience in marketing.
3. I started my maternity leave on 1 April 2020. I did not receive any communications from the company while I was on leave. On 15 October 2020, Mr Woods sent me a letter making me redundant with immediate effect. He said the company was losing money and it needed to reduce the size of the marketing department.
4. I wrote a letter to the managing director on 16 October 2020, appealing against the decision. The managing director wrote back to me on 20 October 2020, saying he was sorry it had been necessary to make me redundant and to wish me well for the future.
5. Since my redundancy, I have found out that a publicity officer left the company in July 2020 and the vacancy was not filled until late September 2020, when a newly recruited employee started. I was not told about this vacancy at the time.
6. I have not received any notice pay or redundancy pay.
7. I believe I was not even consulted about my redundancy because I was on maternity leave. This was unfavourable treatment contrary to the Equality Act 2010 and/or a detriment under the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999.
8. Further, I believe I was made redundant because I was on maternity leave or because I had just had a baby. This was automatic unfair dismissal contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999 and/or discrimination under the Equality Act 2010.
9. Further or alternatively, I believe my dismissal was automatically unfair contrary to the Employment Rights Act 1996 and the Maternity and Parental Leave etc Regulations 1999 because I was made redundant while on maternity leave and not offered a suitable available vacancy.
10. I also believe my dismissal was unfair on ordinary principles under s98(4) of the Employment Rights Act 1996, because:  (i)   I do not accept it was a genuine redundancy. (ii)  I was unfairly selected for redundancy. (iii)   I was not consulted. (iv)   I was not consulted over or offered alternative employment.
11. I claim my entitlement to statutory redundancy pay.
12. I was dismissed without notice, which is a breach of contract, so I am entitled to my notice pay.

Notes

Actions complained of

Always identify the actions complained of first. Here, these are:

• Failure to consult about the forthcoming redundancy.
• Redundancy dismissal.
• Failure to discuss or offer the publicity officer vacancy.
• Failure to pay statutory redundancy pay.
• Failure to pay notice.

It is very important not to miss tribunal time-limits. These can be complicated.

Applicable law

Dismissal for a reason connected with the fact that the claimant has given birth or had taken the benefits of maternity leave:

• Automatic unfair dismissal under section 99 of the Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave etc Regulations 1999.
• Less favourable treatment on grounds that the claimant has taken maternity leave under section 18(4) of the Equality Act 2010.

Failure to offer a suitable available vacancy where a woman is redundant while on maternity leave is automatically unfair dismissal under section 99 of the Employment Rights Act 1996 and regulations 10 and 20(1)(b) of the Maternity and Parental Leave etc Regulations 1999.

The employer’s detrimental actions other than the dismissal itself, ie failure to consult about the forthcoming redundancy and rejection of the claimant’s appeal, assuming these were related to the claimant’s maternity leave:

• Further acts of less favourable treatment on grounds of maternity under section 18(4) of the Equality Act 2010.
• A detriment for a reason related to maternity under section 47C of the Employment Rights Act 1996 and regulation 19 of the Maternity and Parental Leave etc Regulations 1999.

Unfair dismissal – if the claimant is an employee with at least two years’ service she can claim ordinary unfair dismissal under section 98(4) of the Employment Rights Act 1996. For this, she does not need to prove the dismissal was in any way related to her maternity leave, but simply that it was unfair under the usual rules applicable to unfair redundancy dismissals. A redundancy dismissal can be unfair for any of these reasons: it was not a genuine redundancy; unfair selection; failure to consult; failure to consider or offer alternative employment.

The claimant is entitled to statutory redundancy pay (as she has at least two years’ service) or any greater contractual entitlement.

The claimant is entitled to be given notice. Under sections 86 – 89 of the Employment Rights Act 1996,  as long as the claimant’s contractual notice entitlement is no longer than her statutory minimum notice entitlement, she must be paid full notice pay even though she is absent because of childbirth. If the claimant’s contractual notice is longer than her statutory entitlement, she may only be entitled to SMP during the notice period. It is uncertain whether this could be legally challenged.

You might find it helpful to use a table of legal rights often applicable in areas relevant to working families.

Comments on the claim drafted above

Paragraph 1: This is an easy way to start most tribunal claims. It is also relevant to the suitability of the vacancy to mention that the claimant had worked at such a job before. Only say that the claimant has never had any warnings if it is true.

Paragraph 1: ‘Respondent’ is jargon used for the employer or other defendant in tribunal cases. It is not necessary to use that word. The claimant can instead just give the full name of the company.

Paragraph 2: It is important to precisely set out any comments which indicate the employer was hostile to the claimant’s maternity leave.

Paragraph 3: It is important to emphasise there have been no communications with the claimant until she receives the redundancy letter out of the blue. It is unlikely she would have had no forewarning of possible redundancy if she had not been absent on leave.

Paragraph 4: It is standard to set out the date and outcome of any internal grievance or appeal. These are additionally relevant where, as here, the claimant believes the decision to reject the grievance/appeal was itself discriminatory.

Paragraphs 1 – 6 set out the facts. Paragraphs 7 – 9 set out the legal claims relating to the claimant’s maternity leave. Paragraphs 10 – 12 set out her other legal claims, which need not be connected with her maternity.

Paragraph 9: Do not worry about the phrase ‘further or alternatively’. This is common jargon meaning ‘either or both’.  More than one legal claim can be made in a case as long as there is evidence to support each claim.

Paragraph 10: All four reasons for the redundancy being unfair apply in this case. You should select whichever are relevant to the facts in your case. If you are not sure, you need not itemise any reasons at this stage and you can stop after the word ‘1996’. The description of the facts in the earlier paragraphs is enough to make the ground for unfairness clear. The claim mentions ‘s98(4)’ just to make it clear it is talking about ordinary unfair dismissal here rather than any kind of automatic unfair dismissal

Paragraph 12: Always check if correct notice has been given or paid in lieu. If not, make a claim. The Tribunal Claim form also ask you to indicate whether notice is claimed.

Except as explained, the above precedent does not cite the precise sections applicable to most of the claims. This is because the law is particularly difficult in this area and if you leave something out or get a section number wrong, it may cause problems later.

Variations

Discriminatory appeal decision: in some cases, something happens at the appeal hearing which suggests the decision to reject the appeal was also based on the claimant’s maternity, e.g. an adverse comment. If so, the claimant can add a paragraph like this:

‘Further or alternatively, I believe the decision to reject my appeal was because I was on maternity leave or had just had a baby. This was unfavourable treatment contrary to s18(4) of the Equality Act 2010 and/or a detriment under s47C of the Employment Rights Act 1996 and reg 19 of the Maternity and Parental Leave etc Regulations 1999.’

In most cases, however, the decision to reject the appeal is routine and based on other considerations.

The redundancy selection is not discriminatory, but nevertheless an available vacancy is not offered: in the above example, the dismissal was discriminatory and automatic unfair dismissal on two different and independent grounds: (i) because the claimant was selected for redundancy because of her maternity leave, and (ii) because there was an alternative vacancy which she was not offered. In some cases, the reason for selecting the claimant is ‘innocent’ ie nothing to do with her being on maternity leave, but nevertheless, there is a suitable alternative vacancy which she was not offered. If so, paragraphs 7, 8 and 10(i) – (iii) would not apply.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

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