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Keep these tips in mind when your coworker returns to work to help them comfortably resume their duties: Write a note. Leave a note welcoming your colleague back to the office on their desk for their first day after maternity leave. Show empathy. Even if an employee is not covered by an award or enterprise agreement, s83 of the Act obliges an employer to consult with employees on maternity leave if they make a decision that will have a significant effect on the status, pay or location of the of the pre-parental leave position.
The employer needs to provide all relevant information on the change and provide an opportunity for discussion. What happens if the role an employee held prior to taking maternity leave has changed as a consequence of restructure by the time she returns? Again, this will generally not create legal issues provided the reasons are objective and based on sound operational evidence. Employers need to ensure that they have complied with the obligation to consult with the employee who is on leave and this is most often the area which is neglected.
Active involvement of the employee in the discussion about their role will ultimately reduce legal risk and assist with the business outcome. Importantly, the big risk here is adverse action and discrimination claims. Human resources professionals need to interrogate the decision maker as to the exact reasons for making a decision which has a detrimental effect on the employee on maternity leave.
If you are on family-related leave, your redundancy pay should be calculated based on your pay before your statutory leave period started. If your contract provides for more generous pay, your redundancy pay should also not be calculated on this basis. If you returned to work on reduced hours or part-time after your leave period, your redundancy pay will be based on your pay at the time of the redundancy. Your length of service will be based on how long you have been in your job including years working full-time and part-time.
The rules around notice pay and family leave are complex and not clear. If you are uncertain about your entitlement, you should seek advice. If your employer is making you redundant, by law they must give you a minimum amount of notice — this is known as statutory notice. However, most contracts will have a different period of notice — this is called contractual notice. If your notice period covers a period of your family leave, notice pay is a complex issue and the rules are not very clear.
How much pay you are entitled to depends on whether your contractual is at least one week longer than your statutory notice period. If your contractual notice period is at least 1 week less than the statutory notice period, then you would be entitled to full pay for the notice period according to your contractual wages.
You employer can keep you employed until the end of your notice period, or choose to give you pay in lieu of notice.
If you are given pay in lieu, your employment ends immediately and you do not need to serve your notice period. If there is annual leave that you were not able to take before the end of your notice period, you have the right to be paid for this holiday, even if you cannot take it. You continue to accrue annual leave — just as you continue to accrue all of your other contractual rights including pension contributions, tax free allowances etc. Therefore, your employer must pay you for annual leave accrued during your leave period.
Maybe — it depends on when the redundancy situation arose. If your employer knew that your role would potentially be made redundant while you are still on maternity leave, then they have a duty to offer you a suitable alternative vacancy.
Your employer should not delay the redundancy in order to avoid offering you a suitable alternative vacancy. Your employer must not wait until after a restructure to offer you a suitable alternative vacancy. They must do it as soon as they know that you will be selected for redundancy. Technically, once you return to work, and a redundancy situation arises, your employer is no longer required to give you priority for a suitable alternative vacancy.
If you are made redundant shortly after your return to work, it may be possible for you to argue that you have been treated less favourably, and therefore discriminated against, in being made redundant at that time and not during your maternity leave, as your employer would have been required to offer you suitable alternative employment whilst you were on maternity leave.
Therefore you may have been discriminated against as a result of being a woman and so have a claim for sex discrimination. If the redundancy situation arose while you were on maternity leave, and you were not notified or your employer only notified you once you returned to work, this is also likely discrimination.
Your employer will have to consider the pool of employees that will be selected for redundancy. Your employer will also have to consider what selection criteria will be used and they must ensure that the selection is carried out objectively and fairly and is non-discriminatory. For example, your employer must not include pregnancy-related sickness absence or absence on maternity leave.
If your employer is planning to make more than 20 employees redundant within a period of 90 days, they should carry out a collective consultation with the union or elected representatives of the affected employees.
Your employer should also consult individually with all employees who may be faced with redundancy, regardless of the number of employees to be made redundant. If you are one of the employees affected, your employer should consult with you during your maternity leave. Failure to consult could be maternity discrimination. The consultation process should look at ways of avoiding redundancies, reducing the number of redundancies and minimising the effects of redundancy.
For example, your employer could ask for volunteers for redundancy and look at redeployment or retraining opportunities. If you are at risk of redundancy during your maternity leave, Regulation 10 of the Maternity and Parental Leave Regulations says that if there is a suitable alternative vacancy it should be offered to you as you are on maternity leave. I am on maternity leave. I have been told my job is at risk of redundancy and that I need to be interviewed for other posts.
Do I have any rights? If you are made redundant during your maternity leave, regulation 10 of the Maternity and Parental Leave etc Regulations see extract below states that a woman on maternity leave must be offered a suitable alternative vacancy , if one exists, as soon as her post is at risk of redundancy.
This is because you may be about to give birth or may have been out of the workplace for some time and you would be disadvantaged in having to compete for roles. This protection also applies if you are on adoption leave or shared parental leave. Your employer must consider whether a suitable alternative vacancy exists between the time your redundancy becomes known and the time when your maternity leave period is ended by redundancy.
The terms and conditions of this new job must be not substantially less favourable than your original job. You should be given first refusal of any suitable alternative job and you should not have to attend interviews as you have priority over other workers being made redundant who are not on maternity leave.
If there is a suitable alternative role you should be offered it during your maternity leave and as soon as your employer becomes aware that your role is potentially redundant. Your employer should not wait until you return to work you can remain on maternity leave and return to the new job when your leave ends. If your employer fails to offer you a suitable alternative vacancy under regulation 10 this may be automatic unfair dismissal.
In some cases this may also be maternity discrimination. If you are offered a suitable alternative job and unreasonably refuse it, you will lose your right to redundancy pay. During the redundancy consultation process she was invited to apply for a position in a branch in another town. She failed to apply and argued that she should have been offered the role. The Employment Appeal Tribunal said that employers do not have to automatically increase the scores of an employee who is on maternity leave or to give set scores or maximum score as this goes beyond what is reasonably necessary to protect a woman against any disadvantage she may suffer as a result of being absent on leave.
The employer interviewed both employees and offered the job to the other person, making Miss W redundant. The Employment Appeal Tribunal EAT decided that failure to offer the role was an automatic unfair dismissal and Miss W had a right to be offered the job once the employer knew that there was a redundancy situation affecting her role.
She should not have been required to engage in some form of selection process. The EAT also said that if there are a number of posts available, a woman on maternity leave should be offered a suitable alternative vacancy but she can be considered alongside other employees for other posts.
This may be a genuine redundancy situation, see the legal definition of redundancy on page 1, but you might not have been fairly selected for redundancy. Your employer has to use fair selection criteria and must not automatically choose you because you are on maternity leave. I have been made redundant but they are keeping on the employee who replaced me while I was on maternity leave.
Where do I stand? A maternity cover contract is usually a fixed-term contract under which an employer can dismiss an employee fairly by giving notice as stated in the contract. As above, this may not be a genuine redundancy situation if your job still exists and you have been made redundant or you have been selected because of your maternity leave.
I am on maternity leave and my job is going. My employer says that when I return from leave I can apply for other jobs. Your employment and maternity leave will come to an end at the end of your notice period.
This means that you will only accrue benefits, such as annual leave, up to the end of your notice period. However, you remain entitled to your full Statutory Maternity Pay or Maternity Allowance even if your job comes to an end during your maternity pay period.
If there are any suitable alternative vacancies available at any time up to the end of your employment you are entitled to be offered the vacancy during your maternity leave and you are not expected to have to apply for it or attend interviews under regulation 10 of the Maternity and Parental Leave Regulations see above. A suitable alternative vacancy must be offered under a new contract that begins on the day immediately following the day on which your current contract ends.
You can still take the rest of your maternity leave. It may be an automatic unfair dismissal if your employer makes you redundant without offering any suitable alternative vacancies that are available from the point at which you are at risk of redundancy up to the end of your contract.
If your redundancy is not going to take effect until after the end of your maternity leave, you will not be protected by regulation However, if your employer delayed your redundancy until after the end of your maternity leave, in order to avoid giving you alternative work, you may have a claim for automatic unfair dismissal and maternity discrimination and you should seek advice.
I have accepted an alternative role and my employer says I can do a trial period in that role? If you accept the offer of the alternative employment, where the terms and conditions may be different from your original terms then you are entitled to do a trial period in that job. The trial period should start within or no later than 4 weeks after the end of your previous job and last for no more than four calendar weeks.
This period can be extended for training purposes only. If you terminate the contract at the end of the trial period, then you are treated as having been dismissed from your original contract and you are entitled to a redundancy payment. You can lose your right to redundancy pay if you work for more than four weeks in your trial role. You may lose the right to a redundancy payment if you undertake a trial period in the new role and the new role is suitable, but you unreasonably terminate your employment during the trial period.
I am on maternity leave and my employer is reducing the number of staff. Staff have been told that they must apply for one of the positions. If your employer is restructuring or reorganising the workplace without reducing the number of staff, there may not be a redundancy situation. Nonetheless, employers should consult with all employees affected, including women on maternity leave. If your employer is reorganising or restructuring the workplace, it will be up to you and other employees to agree the changes.
If you are returning from ordinary maternity leave the first 6 months , you are entitled to return to the same job as you were doing before your maternity leave. This means your employer must have a good business reason as to why you cannot return to your old job, for example, changes in the type of work, projects coming to an end or loss of contracts.
For more information on discrimination during maternity leave and on return to work see this. If your employer is reducing the number of staff there will be a redundancy situation. A redundancy is where the workplace closes down, the workplace moves or fewer employees are required for existing work.
If you are one of the employees facing redundancy, you do not have to apply for suitable alternative work if you are on maternity leave. Under regulation 10 of the Maternity and Parental Leave Regulations , you are entitled to be offered a suitable alternative post if one exists as soon as your post is at risk of redundancy. Your employer should not wait until you return to work although you can remain on maternity leave and return to your new post at the end of your leave.
My company has warned employees of impending redundancies. I was hoping to return to work part-time after my maternity leave.
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