Notice of redundancy BEFORE maternity leave but dismissal occurs whilst on ML

My partner is 6 months preganant and has been informed today that her fixed-term contract with a government department will not be renewed in July. She intends to begin her maternity leave in May and so she will be on maternity leave when the redundancy comes into effect in July.

I've been reading about reg 10 of the Maternity and Parental Leave etc Regulations 1999, which states that employees made redundant whilst on maternity leave should be offered suitable alternative employment and that they should be preferred over other employees facing redundancy. I know that there are other suitable vacancies within the department and that a few hundred fixed-term employees across several local sites are to undergo selection for a limited number of posts.

What I would like to know is would my partner qualify under reg 10? Or do the regulations only apply to when the decision was taken to make her redundant, rather than when the redundancy comes into effect?

I am afraid that this isn't straightforward because she is on a fixed term contract, and her contractual entitlements are tied to that contract - the details of which I do not know. Regulation 10 is intended to protect existing contractual details - but that means all of them including the end of the contract! I would need to know more about her contractual terms, length of service, redundancy process used etc., and even then it may be impossible to give an informed view. The issue isn't really about when the decision to make her redundant was made (women intending to take maternity leave also have protections against being made redundant on the basis of exercising thier right to take maternity leave) - it is about how they are making these decisions and whether she is being treated differently from others. It is not impossible to make a woman redundant in these circumstances, but it is hard. Unfortunately, government departments usually cover all their bases on such matters, but that isn't to say that they couldn't make a mistake.

Thank you for your reply.

Let me give you a little more information. My partner has worked for the Department for Work and Pensions since August 2009. This was initially a 18 month fixed-term appointment which was subsequesntly extended until July 2011.

She has come home today with a letter saying that 50 FTA employees will be kept on from July 2011. Staff from 15 offices around South Yorkshire are affected by the decision and every site except my partner's will be extending contracts in some shape. Some offices are holding selection exercises, others are simply extending all FTA contracts. My partner has not yet received anything in writing saying that she will be made redundant, but the letter makes it clear that no one from her site will be kept on.

Would regulation 10 apply if she is officially informed that she is being made redundant whilst she is on maternity leave? Would the department be obliged to offer her one of the 50 positions at the other sites? My partner is currently looking for her contract so hopefully I can give you some further information when she finds it.

Not necessarily. It may be that these different sites qualify as separate establishments in law, in which case each site is treated as a separate place. Regulation 10 only applies if there are suitable alternative vacancies within the establishment - not across establishments. And if everyone at her site is being treated in the same way then it is exceptionally likely that she has no claim under regulation 10 because nobody is being kept on. If you think about this logically, it would be impossible in all circumstances for an employer to always keep on a woman who is pregnant / on maternity leave - there simply may be no jobs. Which is what the employer here appears to be saying. Or attempting to say. It is further complicated by the fact that she is, as I said before, on a fixed term contract and she would never get preference over a full-time "permanant" worker in this situation until she had completed 4 years of service on fixed term contracts. Maternity doesn't change that - she is a fixed term employee and her contract is coming to a natural conclusion.

It is difficult to be precise without all the details, but I suspect you may have an uphill task to show that this is unfair, because the employer is doing nothing that wouldn't have happened if she had not become pregnant. She would have lost her job anyway - in effect what they seem to be arguing here is that she is being "returned" to the position she would have otherwise been in (which is her reg 10 right) - but there wouldn't have been a position.

I can see arguments on both sides here, but without details it is hard. You might ask the question of the employer and see how they respond - that would at least give some more information to go on! And if they are treating each site as a separate establishment you might ask for an explanation about why this is the case.

Thank you for your swift reply.

On the subject of separate establishments, my partner has already moved between sites in order to accommodate changing business needs. She also tells me that staff move around the area quite freely and that they seem to be directed to the sites with the most work.

I appreciate that you are unable to give accurate advice without any further information about her contract and I agree with your point that she would otherwise had her contract terminated had she not been pregnant. It's just that the other informtation I've read so far suggests that if she is informed of her redundancy whilst on maternity leave, she should be offered suitable alternative employment (subject to availability of course) under Reg 10.

I'll try and find her contract and hopefully provide you with some more information.

Thanks again for your help.

Further to my previous answer, I've managed to get hold of a copy of my partner's contract. It's pretty basic - they are the main terms and conditions and I think most of the department's procedures are explained in greater detail on their intranet.

One interesting thing is that her place of work is listed as a previous site she worked at, before she moved to her current site. The old site is extending some contracts whilst her new one isn't. There has been no change to her contract when she moved sites. Should she be considered under the selection process which is to be conducted at site named in her contract?

No. What you are calling a contract isn't a contract - it's the written state of main particulars. The contract is actually a wide range of things such as this, the policies etc., and "what happens" - so the fact that she has moved sites and worked there means that that is now her workplace. I do think that your starting point here has to be to clarify the questions with the employer, because without this information it is hard to see where they are coming from.