##Employment & maternity - forgotten about for TUPE & their being akward

[yashya]

hello, I hope someone could provide an outside view, or at least a cool head, as right now I'm gutted and my partner is in outrage.

 

I'm a manager for a franchisee with 20 odd venues over a large territory, and I''m currently on about 31 of 52 weeks maternity leave (so I'm just into the non paid bit) at the start of April I requested a meeting with him to see what my annual review would be, what the realistic options are for flexible working & seeing what I'd have to compromise salary wise, so I could use the next few weeks to talk with my partner & make the best path for everyone.

 

At the meeting he told me he had, the day before the meeting, sold 2 of the 4 venues in the town to another franchisee & as such I hadn't been included in the sale, but he couldn't see why I wouldn't be accepted by the new people, he just wanted to see what I would be happy with. As all the other locations in the town have managers I'd have to work in another town, and probably relocate, if I wanted to stay with him, but the new guys were really nice & he could see no reason why they wouldn't also want a manager with 7 years experience in the role. blah blah blah, I should call our HR guy & see what's what.

 

Hr guy really wasn't expecting my call, was surprised that the Boss thought the new Franchisees would take me, as my salary would be quite high, esp considering they'd run the locations themselves & they had my Assistant manager to cove the quieter of the locations for them, plus he didn't think I'd been included on the pay role shown to the new franchisee, so he wasn't obliged to take me on. Still, they'd call the new guys & see what they could do & then give me a call back before the end of teh working day.

 

At half four I was called back, and told the new guys don't want me, and so when I return I will be working at a location that's about 60 min away by public transport ( I don't drive) and closer to my return I'll be able to negotiate some travel allowance.

 

(still with me?)

 

It feels like they've picked this location on purpose,now they've realised they forgot to sell me on with TUPE, and maternity law says they have to offer me a job when I comeback. The travel cost will be approx £2,500 pa, the travel time will turn my pre maternity working day from 8-9 hours into 10-12 hours, which seems a little impractical given I'll have 2 kids to look after, and I'm also wondering why they haven't suggested that I take a closer location & move a younger manager, who can drive & has no kids, out to the sticks. I'm also gutted, I really loved the location I worked at, had a really great team around me & was really looking forwards to going back to work, & now it also seems unlikely they'll be able to meet any flexible workaround.

 

My partner is furious, he works for a much bigger company than me, with much more HR savvy/ professional people & says that they are really making things difficult for me on purpose, so I choose not to come back, so they avoid a redundancy payout. As far as he sees it, if the new franchisee doesn't want me then I am redundant, and I should ring up the HR guy & ask for redundancy pay + outstanding holidays, or tell them it's going to a tribunal for constructive dismissal & sex discrimination.

 

I'm just wondering if I should be thankful of a job given that there's a bloody recession on?

 

Can anyone offer some calm suggestions/advice?

Edited April 25, 2011 by yashya
I'm trying to make it easier to read, but it's not working!

[Sidewinder]

So was your normal place of work one of those transferred, or were you multi-sited prior to Maternity Leave?

 

As far as I can see from this you need to submit a formal grievance in the first instance, and then take professional legal advice. You can take your pick from several options, all of which will leave very little room to manoeuvre for the employer.

 

If your normal franchise was sold without your knowledge, whilst you were on Maternity Leave, then there has a)been a failure to consult under TUPE, and due to the fact that you were 'forgotten', b) an Unfair Dismissal on the grounds of sex discrimination due to your pregnancy. There can be no real room for argument if you would, in the normal course of events, have been transferred along with the business that you worked for. All employees are entitled to consultation by law, and being on Mat Leave is no reason for this not having taken place. Additionally, and irrespective of the Transfer, a competent employer should maintain contact with employees on Mat Leave to keep in touch with things which affect the business.

 

Alternatively, if the existing employer opted to keep you on and not transferred you with the franchises which were sold on, then there has still been a failure to consult, sex discrimination for not giving you the opportunity to transfer, and in offering you an unsuitable replacement post when you return, you would also be well within your rights to resign and claim Unfair Dismissal on grounds of sex discrimination by reason of pregnancy.

 

You could also be made redundant, however this in itself would also be an Unfair Dismissal (on the same grounds, and also that your position is not redundant and the situation has arisen solely as a consequence of the transfer).

 

As you will be aware, TUPE gives you the legal right to be transferred on the same T&Cs as you enjoyed before the transfer, and being on Maternity Leave makes no difference to that. Failing to inform the new owner of your existence is a fundamental failure of due diligence. On Ordinary Maternity Leave you would have been entitled to resume in your old position, however even with Additional Maternity Leave, the employer must allow you to return in a position which is suitable in your circumstances and not substantially different in terms of status to your previous role. Clearly with an increased working day which would be detrimental to your family life, and with substantial additional costs, the position that they have offered is completely unsuitable.

 

You are not redundant, but have potentially been unfairly dismissed. That is the point that you should be making and nothing less IMO.

[yashya]

Thanks for replying,

Yes, my normal place of work has been sold, I was only the manager of one store and not multi site, I'm trying to remember if my contract had a named store on it when I joined (the same one) but can't find it right now (but I know I have got a copy someplace)

 

Am I best putting in the grievance now or closer to the RTW do you think.

 

I'm just baffled as to why they are sending me so far away!

[Sidewinder]

Put it in now if you want to put them on notice that they potentially face a far far bigger problem later on, and if you would rather have the prospect of a suitable job to go back to. If the employer has any sense they will then bend over backwards to accommodate you in whatever role you want when you return - possibly having to move one of the existing Managers to the site you were offered in order to make room for you closer to home. I am sure that if you mention their obvious failures and the possibility of a Tribunal case you will see some furious backpeddling!

 

If you would rather do nothing now until you have all the available information, then go and see a solicitor as soon as possible - your home insurance may well cover you for employment disputes.

 

Keep us up to date though - I will be intrigued!

[yashya]

I found out last night that they have sold the other 2 venues to a different franchisee,

so now I am the only staff member who lives & worked in this location that hasn't been transferred with a sale.

 

Does this change anything?

it that it probably hilights that they've excluded / forgotten about me because I'm on Matt leave,

Also, and it's only gossip from a colleague who spends a little time in the head office, there was a general assumption that with 2 kids now, I wouldn't want to come back to work.

[Sidewinder]

That is exactly the point. You have either been forgotten or an assumption has been made. An employer must always work on the basis that an employee on Mat Leave will take the full period of leave permitted by law or bu contract, whichever is the greater - they cannot even ask at the outset when or if you will return.

 

I cannot see this as anything less than Unfair Dismissal due to Sex Discrimination.

[yashya]

Thanks for reading.

I'm getting married in a week (!) so once the fun & games are all done, I think i'll search out a solicitor & get some official advice.

 

Would it be worth me writing out a statement of what has been discussed between both the boss & the HR? As it's going to be a few weeks? Would it be of be of any worth for anyone other than myself? Or could just notes in a safe place suffice?

[Sidewinder]

Yes. Get absolutely everything down on paper in as much detail as possible. Names, dates and who said what to whom. You will need those details later.

[yashya]

Just a quick update,

 

Got some advice & they also suggest that there is the potential to take the new franchisee to an Employment Tribunal too!

 

I've just posted my grievance letter (& I'm feeling a bit sick & frightened!)

[Sidewinder]

I've just posted my grievance letter (& I'm feeling a bit sick & frightened!)

 

Just console yourself with the fact that this is nothing to the way that they are going to feel!

 

Chin up and feel better - you are the one in the right here, and as far as I can see you hold all of the cards.

[yashya]

I have my Grievance meeting late next week, they've given me a week notice, but anyone I was going to have as a witness already has their rotas posted 2 weeks ahead, so the person I've asked is rota'd to work that day and doesn't know if they can find cover.

It just feels like they're being even more akward!

As it's just a grievance, not some level of disciplinary would it be a bad idea to still go ahead next week, if I don't have a whiteness?

 

Also, would it be worth taking a copy of TU(PE) & the relevant sections of Matt law with me? Or should the onus be on them to know their stuff? Should I be taking anything else with me?

Even thought I know I'm in the right here, I'm starting to feel like this is going to be the beginning of a fight, I'm getting worried that I'm going to turn it into one, by gearing up for them to be aggressive (when there's a slim chance they may not be).

[Sidewinder]

Hi - and apologies for not having seen this sooner.

 

If you really want a witness and your choice is unavailable for whatever reason, it is acceptable to ask for an adjournment, or even for you to ask for your chosen witness to be permitted time away from their regular duties if this can be arranged and is acceptable to all parties. If you have a meeting, even a grievance hearing, without a witness, then you must insist on comprehensive notes being taken and signed/agreed before you leave after the hearing. Alternatively you could ask for the meeting to be recorded.

 

It is useful to have relevant documents available for reference, but quite frankly I would do no more than refer to them as notes at this stage. Why do their work for them and run the risk of getting tied up in knots by a savvy employer? Quoting law at too early a stage carries it's own risks, so better to go armed with the basics (as in 'I understand that the law says that I am entitled to X,Y and Z..." rather than to start quoting specific legislation. All that you need to know is that TUPE entitles you to consultation regarding a relevant transfer and that you were omitted from the list of affected employees altogether, and also that as an employee on Maternity Leave, if the intention was to keep you with the existing employer, then you should be permitted to return to a 'suitable' alternative vacancy in terms of status and remuneration.

 

Be confident in your position without getting over-technical. They are in the wrong and will need to make their own enquiries about their legal position don't make it easy for them!

 

Good Luck.

[yashya]

well, they did almost a 180 at the grievance & my boss was clearly sticking to script.

 

They've not Actually sold one of the stores *yet* and it seems, that there was a horrible "miss communication" and I should never have been told that the store have been sold "and we apologise for any distress this has caused you"

 

As the store they've not sold is one under refurb, it seems they're paying for this before the store is sold on, I suspect there will be a swift payroll of just me made up & handed over with the TUPE pack, and everything seems to be good for me.

 

I have arranged a meeting with the HR manager, (who's actually leaving in 6 weeks) as it seemed like my boss was doing some quick back peddling & each time I tried to say what had happened in the original meeting he would cut me off in order to "correct" me. And I'm also slightly annoyed that the meeting was in the same room as the owner, who was working at his desk in the corner, so I think my boss was mostly trying to save face when he was correcting me.

 

I mostly happy with the outcome, but I'm going to be watching them like a HAWK over the next few months...

[yashya]

Oh & thanks for all the help & advice you've given me.

 

I doubt I'd have felt quite so confident without it.

[Sidewinder]

I mostly happy with the outcome, but I'm going to be watching them like a HAWK over the next few months...

 

Make sure that you do. keep detailed notes of any conversation and all relevant information, including what was discussed today.

 

Really pleased that you seem to have kept your job.....I get the impression that if you had just rolled over, nothing more would have been said. Good Luck, and enjoy the remaining Maternity Leave!