Regulation 10 and other pitfalls

18 Dec 2015

Carol was eagerly looking forward to a family Christmas; her 10 month old daughter’s first. She was also looking forward to returning to work in January at the end of her maternity leave. She loves her work as a senior events organiser. Last week she received a Christmas present from the company; a telephone call from the UK Operations Director who told her she wasn’t being reassigned to one of the new roles in customer outreach so unfortunately she’s redundant and would she please call HR who’ll brief her on her redundancy benefits. Carol’s Christmas collapsed about her and little Phoebe couldn’t understand why mummy was suddenly crying.

Employers are rightly nervous about dismissing someone who’s on maternity leave but one’s usually on pretty safe ground if there’s a genuine redundancy. However there are pitfalls and Carol’s employer made two classic mistakes.

It allowed Carol to be out of sight therefore out of mind. Yes, it had given some (limited) warning of changes in the events team – but it did so by a couple of broadcast emails and one perfunctory team meeting a fortnight ago.  Of course Carol was excluded from these because she was on maternity leave and the HR assistant didn’t think to contact her personally. It’s an easy mistake to make when there’s so much else going on. 6 new(ish) roles to fill from a pool of 14 candidates and the boss says it must be done by the end of the year which in fact means 18 December because of the corporate Christmas closure…

It overlooked Regulation 10 of the delightfully named Maternity and Parental Leave etc. Regulations 1999. Regulation 10 (2) says:

“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).”

So when a redundancy arises during maternity leave and there are suitable alternative vacancies, the employee on maternity leave has priority over others who may also be at risk. The employer must apply a form of positive discrimination and, again, this is easily overlooked in the heat of moment.

The company refuses to discuss the situation so Carol’s Christmas present to it is a reference to ACAS for early conciliation. I’ll let you know what happens.