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Ben Jones
Ben Jones, Solicitor
Category: UK Law
Satisfied Customers: 40523
Experience:  Specialist in UK Legal Matters
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I have been made aware that a redundancy plan is going to be

Customer Question

I have been made aware that a redundancy plan is going to be launched within my company. I am the Head of the Internal Audit function, but currently in maternity leave since February 15th, 2013. I was supposed to come back to work yesterday from maternity leave but I deferred my return, informing the HR due to the following additional events:
- No reply from my CFO following my text mentioning that I will be in London Wednesday and Thursday, requesting if he would like to meet with me;
- My travel tickets from Brussels to London from June to July 2013 have never been not booked, despite severals request whereas:
- these tickets are always booked 2/3 months in advance to optimise the costs of
the travel
- I am supposed to attend an Audit committee in July 2013 and to oversee properly
my team based in London

Such travel arrangements had been agreed by the CFO and former CEO to enable me
to live in Belgium, at the time I was offered another position in Brussels.

The CFO did not inform me of any changes regarding the travel.

Due to the redundancy plan, which is going to be launched. I have some reasons to believe that they want to suppress my position and replace me by my number 2.

What is your view on the matter? what should I do taking in consideration I received just an email from the HR director this morning straight after having informed the CFO that I was extended my maternity leave? The HR director email was very formal email, mentioning " I know how stressful it can be returning to work after having a baby" so the last thing you need is this level of disruption. Do let me know if there is anything further that me or my team can do to support you".
Submitted: 2 years ago.
Category: UK Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today. Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.

JACUSTOMER-j6p49azg- :

Hi Ben,

JACUSTOMER-j6p49azg- :

Hi ben, my name is Merryl Durrenbach and I have been working as Group Head of Internal Audit since June 2008. I have an excellent performance track record with my full bonus and LTIP awarded year on year. However, I feel that since my maternity they would like to replace me with my number 2 who is far less expensive in terms of salary and package.

Ben Jones :

Thank you. And just to clarify, what specific questions do you have about your situation?

JACUSTOMER-j6p49azg- :

First, what attitude to adopt with the HR and my CFO? What is the risk of being made redundant while in maternity leave? is there a case of unfair dismissal as I cannot see how my position will be suppressed?

Ben Jones :

Advising you on what stance to take with the employer over this is difficult, especially when it is unclear what their actual intentions are. Whatever these may be, you are always best advised to remain professional and to simply pursue your rights and not bow down to any pressure you may feel you are being placed under by them. If you have outstanding issues with them then communicate with them about these and try to keep your correspondence in writing so that you have a durable record of this in case you need to raise it or refer to it in the future.

In terms of being made redundant whilst ion maternity leave that is certainly possible, although you will have certain rights if that was to happen. For example, you will have the automatic right to be offered any suitable alternative employment that may exist in priority to other employees who are also at risk of redundancy. However, if the employer can show that there is a genuine redundancy situation, that they have followed a fair procedure, consulted with you and offered you any suitable positions that may exist, as well as there being no indication that you were selected for redundancy because of being on maternity leave, claiming unfair dismissal could be difficult

Ben Jones :

Has this answered your query or do you need me to clarify anything?

Ben Jones : You left a poor rating even though you did not get back to me to let me know why you were u happy or if you wanted me to clarify anything, which I would have been more than happy to do. can you please let me know if you need further clarification?
Customer: replied 2 years ago.
With regards to the rating, I can change it to a positive rating. However, the answer was really by the book and not really tackling which approach to adopt and responding if a required position within the position could be suppressed with the job carried out by someone lower in the hierarchy at a lower salary
Expert:  Ben Jones replied 2 years ago.
As mentioned I cannot advise on which approach to adopt right at this stage because it is unknown what the employer's actual intentions are. Advising of anything more specific than what I mentioned in the first paragraph of my response is really just stabbing in the dark and has no guarantee whatsoever whether it is the correct approach and if it will be adequate for your circumstances. That is why the way to approach this will become more obvious once you have a better idea of where the employer is intending on taking this.

In terms of the proposed redundancy, the Employment Rights Act 1996 defines a redundancy situation as falling within one of the following circumstances:

1. Business closure – where the whole of the employer’s business is closed
2. Workplace closure – closure or relocation of one or more sites
3. Diminished requirement for employees to carry out work of a particular kind.

Whilst the first two reasons are self-explanatory, it is the third reason that will be used most commonly and also the one that brings the most challenges.

Examples of when there is a diminishing responsibility to do work of a particular kind are:
• There is the same amount of a particular kind of work but fewer employees are needed to do it. This would generally be seen as the "classic" situation in which the employer decides to make better use of its resources. This will also include consolidating some of its jobs (e.g. spreading out the work that is affected amongst existing employees). This is where many employees get confused as they believe a job has to disappear for them to be made redundant, however that is certainly not the case.
• There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)
• There is less work of a particular kind, but the same number of employees are required overall.

So to be able to justify that a genuine redundancy actually exists here the employer would need to show that the above applies in some way. They cannot just get someone on a lower salary to do your job and bump you off, they can however split your duties across existing staff if necessary.

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