UK Employment LawFilter: missus made redundant during maternity leave
October 11, 2012 6:48 AM   Subscribe

I'd like some advice on whether it's worth pursuing an ex-employer to tribunal for unlawful dismissal.

My missus was recently made redundant, 3 months into maternity leave. We know for a fact that someone was internally recruited into her team a few days before she was notified. Although it's unlikely the Firm would ever admit this, we know this is an unlawful dismissal and potentially sexual discrimination.

Her redundancy package was roughly 5 months' pay. Prior to going on maternity leave she was working part time, since she also looked after our firstborn two days a week. It is on this pro-rata part time salary that her exit package has been based.

The process has so far been very shoddy, and only recently has she got senior HR attention by raising a grievance, as per ACAS guidelines. The initial documentation she was sent did not reflect the conversation she'd had with HR, the pack took 2 weeks to arrive rather than the promised 4 days, and some of the details in the pack were wrong.
We've been told by legal counsel that jobs of similar status and remuneration should be offered to those on maternity leave (rather than simply a list of current vacancies, which is what they have said they will send her).

I'm not after legal advice. We've got a couple of sources of that that we can use. I'm curious to know if 5 mths' pay for someone who's been working there for 7 years is reasonable. I'm also interested to hear experiences of pursuing ex-employers to tribunal for unlawful dismissal. How long does this take? What sort of cost? How much of a drain is the process? My thanks to you all.
posted by anonymous to Law & Government (7 answers total)
Employment tribunals in the UK tend to be relatively sympathetic to employees, rather than employers, if my old company's HR are to be believed.

The key thing is paperwork (to prove what has happened) and process (which needs to be followed closely in redundancy). If you aren't already, then document everything. You're getting legal advice, which is good.

Going to a tribunal is fairly painless in my limited experience. It was not expensive. My experience is this: a friend took sick leave and went abroad for a long weekend. Her employer discovered this and dismissed her on the spot and refused to pay her a cent. She was in the wrong. But she was dismissed without due process. My friend filed the paperwork for the tribunal but then had to leave for good to go home to Australia. I, a non-lawyer, went in her place to explain her case. As it turns out, her employer did not bother to turn up to defend the case. But the law is clear on the process for dismissal, whether justified or not. We won the case based on the employer not going through the right process to dismiss my friend. I had to explain this to a judge without going all My Cousin Vinny on things. It was easier than I thought it would be.

I have also had to make people redundant, and been involved tangentially in a similarly contentious case where an employee (J) was made redundant while on maternity leave [I was asked into the process briefly because I had a role to offer her].

5 months' pay for redundancy isn't terrible for someone who has been working there 7 years. It's not brilliant, but I've worked somewhere where the only paid out 1 week per year of employment. My last employer used to pay out 1 month per year. The payment should, I believe, be over and above notice given, which itself should end *after* the consultation process.

As to your case: it is, as you imply, hard to prove that the role has not actually been made redundant. This is true whether it involves someone on maternity or not. If the company is smart, they'll have drawn up an org chart for your missus' area that does not include the role. They will also make damn sure they don't recruit (internally or otherwise) anyone using a similar job spec of your missus' old role. Recruiting someone else in is not really the issue. The issue is the role, as defined by its scope, spec, pay etc. Your lawyer should be skilled enough to request the information that shows if this is/not the case. In the maternity redundancy I've mentioned above, the person involved was livid, involved lawyers, threatened litigation and eventually reached a compromise. I have no idea whether it was favorable or not, but she did not come back to work.

What is in your favor is that by and large companies hate to be dragged through tribunals on sexual discrimination cases, not least because tribunals are quite employee friendly. A second former colleague, also made redundant on maternity, kept a file offsite of things to bring up in a sexual discrimination case for use when negotiating got tough. It is worth preparing a negotiating strategy based on the company wanting to avoid a tribunal if you can do so effectively. Unless you can prove that the redundancy is sexual discrimination, you will be running a risk of losing the case.

So be prepared to negotiate to a compromise too. You have my sympathies. But consider also your own wellbeing - with the benefit of hindsight an enhanced compromise might be the right thing for you also.
posted by MuffinMan at 7:55 AM on October 11, 2012 [3 favorites]

If your wife was anything except "job preserved exactly in place" whilst pregnant in the UK, you want to pursue unfair dismissal, yes.
posted by DarlingBri at 8:30 AM on October 11, 2012

In Canada, which might be a bit closer to the UK than the US would be (if my law school profs are to be believed), the basic rule of thumb for a normal dismissal is 1 month / year. She was working there for 7 years, but partially part-time. My first guess is that she shouldn't be paid on the part-time basis but rather the 7 years should be re-calculated for the "time equivalent to full-time"; for example if she worked 5 years full-time and 2 years at half-time, then she has worked for 6 full-time years and is owed pay at that scale. But I'm not sure.

However, all of the above is excluding the sexual discrimination aspect - which is pretty serious. I don't know employment law (in my country) or UK law clearly enough to say how that works with regards to compensation. I would be surprised to see much more than a few months' penalty, though.

The monetary cost of pursuing this is reasonably low, especially if you handle it yourself. It's not court, you can avoid using tons of a lawyer's time. But as people have said above, it's a mental drain for what will not amount to a massive payout. And presumably if your wife can/could find other work, there will be no payout.

I would say it's definitely in your interest to negotiate to a compromise, perhaps using what I mentioned above, using her full-time equivalent as the payout scale. That's easy enough. Beyond that, it depends on your combined mental health and willingness to spend the time (which, well you have 2 young kids now, I have no idea how to judge that) weighted against the money you might receive, the mental satisfaction of winning (WARNING: this never feels as good as you might expect), and the social justice feelings you get from helping to prevent such discrimination (again with the warning).
posted by Lemurrhea at 9:02 AM on October 11, 2012

5 months for 7 years is okay. Well above statutory levels. I think Ruthless Bunny's questions are the ones I'd be asking myself. There's a high value in drawing a line under the events and moving on, particularly if you can get another equivalent job.
posted by crocomancer at 9:04 AM on October 11, 2012

Assuming someone is 22-41 yo, the UK statutory for redundancy is 1 week/year.
posted by MuffinMan at 9:05 AM on October 11, 2012

I feel compelled to make this note whenever I read questions like this.

It is, in general in both the UK and the US, illegal to use employment law grievances against a person, either by the previous employer (ie, retaliation), or future employers.

That doesn't mean such a thing doesn't happen. Employers don't like people that sue them or any other employer or take any employment action. A potential employee that does something like that is a risk, and potential employers are incentivized to take any action possible not to employ someone like that.

A basic question that I feel is prudent to ask is, "what are you trying to get out of this"?

Do you (your wife) want your old job back? You might be able to get it, but your employer will never trust your wife again. I'd anticipate never receiving a pay increase again, and being gradually, subtly pushed out of the company. Further, I don't know why your wife would want to work for a company that tried to illegally get rid of her.

Do you (your wife) want money? You could probably get it, but I highly doubt that it will be sufficient to cover your wife's wages for the rest of her life. Eventually she will have to work somewhere else, and your wife will have to weigh the cost of her action in terms of employability versus the compensation she receives.

Do you (your wife) want to be proved right? That would probably happen - because it sounds like she was illegally terminated - but that doesn't come with it any money. Unfortunately, she might end up in a winning scenario, but still end up no better off than she was before.
posted by saeculorum at 9:34 AM on October 11, 2012 [1 favorite]

Mod note: From the OP:
"thanks for your considered responses all. There is much food for thought here.
@saeculorum - you raise some very valid points; we've had discussions along these lines too. The industry in which she is/soon-to-be-not employed is kind of 'cosy'. I know word gets around, particularly among hiring managers.
@muffinman - this is a very helpful comment. it's good to hear your experience of such a similar situation"
posted by jessamyn (staff) at 9:53 AM on October 11, 2012

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