Redundancy on Maternity Leave need advice ***WON***

[Sparklez30]

Thanks Bigredbus - I tell you I was up until 3am last night researching this!! I can't unfortunately find any reference to the original case taken to tribunal only to the appeal (as I thought it might provide some more helpful info on how their complaint was structured in case I have to take my complaint to a tribunal).

 

If I am forced to take the matter further I cannot afford legal representation so I will have to make any claim all on my own therefore I am really trying to understand as much about this as possible. The whole area of employment law is a nightmare so I just hope they back track and decide to give me the retention bonus too.

 

I do worry that they may now just submit T&C's that exclude me from being able to receive the retention bonus especially as they are aware that I have indicated that their current reasoning could be discrimination.

[Bigredbus]

You have done a brilliant job so far...

 

Now... as stated in their initial letter, the payment is a retention bonus and is paid to employees retained in X employ up until 31 March...

 

Whatever T&Cs they may produce, read the case transcript again and especially (4) and the tribunal's findings at (12)...

[Sparklez30]

i read that but I thought that the findings (11) indicated that they could have T&C's that would require you to physically be in the office and not just an employee - is this not the case (am I not understanding it correctly?)

[Bigredbus]

I agree with you... However, the only condition to be discharged is one of time (that you remain within X employ until 31 March) and despite the fact that there is an ''AND'' connector relying upon further conditions (which were to be attached to that very same letter), it is nevertheless the only condition...

 

You mentioned, earlier on, that no one had, or/and has receive the further conditions... that fact could be of help as you already stated!

[mariefab]

I agree with BRB. Your employer can't depend on T&Cs that they haven't comminicated to anyone affected.

[Sparklez30]

thanks Bigredbus - it is the case that no one has received further T&C's even though they were referenced in the letter.

 

I stongly expect that they will do now that I have brought the attention quite dramatically to their attention lol. I shall wait and see what they say and then I suspect I shall be back to bother you with more questions (or possibly earlier if I find anything more I don't fully understand). I really do appreciate your assistance it is very helpful to have confirmation that I am understanding the legal side as it really is a nightmare for a non legal mind.

 

I know that tribunals are supposed to be there so that you can bring your complaint without legal help but in practice the subject matter is so difficult to understand it must put a lot of people off - and even though I am a pretty quick study I must admit it is still very difficult to understand!

 

 

edit - and thanks Mariefab

 

I think I've already given them a bit of a headache as they did not respond back to my email immediately telling me to forget it!

[Bigredbus]

Now, it is time to wait and see what they may want to come up with...

[jacketpotato]

Even if there are T&Cs excluding you, I'm not sure they would be enforceable. Having a condition designed to exclude employees on maternity leave would be sex discrimination, you are still an employee whilst on maternity leave. The employer could, however, use non-discriminatory conditions (e.g. a bonus that only applies if staff make a certain number of sales).

 

My initial view is that you should focus on the discrimination aspect. A bonus would be a contractual payment, and one of the fundamental principles of contract law is that contracts are only enforceable if there is consideration - this means that the other side must agree to do something in exchange. A promise like "here's an extra £100 for your work last year" is unenforceable because there is no consideration, the work was done in the past so you haven't promised to do anything in exchange for it. You could sidestep this problem by showing discrimination.

[Sparklez30]

Thanks Jacket Potato -the bonus is not for sales. I work in the accounts/finance department. Although I have nothing saying why the retention bonus is being paid common sense would indiciate that it is a payment because finance staff are being required to work longer and work their notice to ensure that all of the accounts information can be prepared to be transferred over to the new companies head office which means that although all other departments are replaceable immediately finance have to continue to work to ensure the transfer to the new head office (if that makes sense).

 

I'm not sure if this makes any difference to the above? Are you saying that if instead of saying I had to be in the office they could say I had to assist in preparing the accounts to be transferred over to the new head office (or something legal and similar lol) and as I am not actually working then this is not a criteria I would fulfil and as such this would be good reason not to offer me the retention bonus.

 

Or are you saying irrelevant of what they say it is discrimination because I am not able to be in the office or complete the work required as I am on maternity leave (sorry I think I may be being really slow here but I'm not sure what you mean - if you could put it in a 4dummies style breakdown for me it would be much appreciated )

[Sparklez30]

right I'm trying to get my head around my argument over this bonus with the company.

 

As I understand it this Bonus is not contractual because there is nothing in our contract it is not a regular bonus and is being offered purely due to the head office closing down (is this right?)

 

I think it is discretionary because it is not across the board. It is only being offered to the finance department and the managing director and not the remainder of the head office employees (am I right?)

 

They have confirmed in my letter withdrawing the retention bonus that I do not qualify because I am on Maternity leave (does this make it automatically discrimination). Also as my maternity cover has been offered the bonus I must have been able to qualify if I was actually working in my position?

 

I have indeed fulfilled the only condition they have actually communicated to me so should qualify anyway (is this right?)

 

If they now send out additional T&C's if these new T&C's are not possible for me to qualify for because I am on maternity leave then this is also sex discrimination -(is that right?)

 

so if they decide it is for work carried out over the period feb 2012 to Mar 2012 period but I am not in the office this is still discrimatory as it is only not possible for me to adhere to this because I am on maternity leave?

 

 

 

I'm having alot of trouble getting my head around the issue with contractual and non contractual and also what T&C's might or might not be discriminatory??? Its really giving me brain ache but I really want to be able to fight my corner and understand it if (for example) they choose to address this situation during my next meeting rather than responding in writing to my email. (PS I do know that as the redundancy is now extremely complicated I need to take someone into my next meeting with me)

[Sidewinder]

right I'm trying to get my head around my argument over this bonus with the company.

 

As I understand it this Bonus is not contractual because there is nothing in our contract it is not a regular bonus and is being offered purely due to the head office closing down (is this right?)

 

I think it is discretionary because it is not across the board. It is only being offered to the finance department and the managing director and not the remainder of the head office employees (am I right?)

 

They are operating it as a discretionary bonus, but in a discriminatory fashion - discretionary bonuses are rarely a good idea without extremely specific exclusion clauses as they will inevitably exclude certain staff - black, male, female, young, old, bisexual, catholic, pregnant - any one of those excluded could, in theory form a case that they may have been exclude because of a particular characteristic not despite it!

They have confirmed in my letter withdrawing the retention bonus that I do not qualify because I am on Maternity leave (does this make it automatically discrimination). Also as my maternity cover has been offered the bonus I must have been able to qualify if I was actually working in my position?

This would almost certainly be deemed proof that the only consideration for excluding you is the fact that you are on maternity leave, hence direct sex discrimination - very hard to argue against that

 

I have indeed fulfilled the only condition they have actually communicated to me so should qualify anyway (is this right?)

Yes - if the only qualification was to be employed by the company on a given date, then you have met that condition.

 

If they now send out additional T&C's if these new T&C's are not possible for me to qualify for because I am on maternity leave then this is also sex discrimination -(is that right?)

Yes - because they would be formulated specificially to exclude you from the payment!

 

so if they decide it is for work carried out over the period feb 2012 to Mar 2012 period but I am not in the office this is still discrimatory as it is only not possible for me to adhere to this because I am on maternity leave?

They would have to have specified the conditions before announcing the bonus and it would have to be linked to a particular task - that might just have been lawful as it would be applied as a 'wage' or 'salary' enhancement as with overtime, but they have deemed it a 'loyalty' or 'retention' bonus. Whilst on maternity leave you are not in receipt of 'wages' but 'maternity pay or benefit' so supplementary wages can be paid to others but exclude those not in receipt of 'wages', however a 'bonus' designed to reward staff for simply remaining in post for a specific period falls outside of the scope of salary. In those circumstances you are on the payroll, would still have been on the payroll if you had not been absent through childbirth, so are entitled to the payment.

 

I'm having alot of trouble getting my head around the issue with contractual and non contractual and also what T&C's might or might not be discriminatory??? Its really giving me brain ache but I really want to be able to fight my corner and understand it if (for example) they choose to address this situation during my next meeting rather than responding in writing to my email. (PS I do know that as the redundancy is now extremely complicated I need to take someone into my next meeting with me)

 

You need to raise this as a grievance citing that you have been treated differently due to your maternity status. You have been excluded from a bonus payment whose only clause was to be employed on a specific date, and in meeting that criteria are entitled to the money. No need at this stage to quote the GUS case, but that is extremely relevant to your case, and having been upheld by a higher Court is pretty overwhelming should the employer continue to resist.

[Sparklez30]

Thanks Sidewinder I do appreciate all the help that is offered and I know I am asking a lot of questions - I think I am slowly getting my head around this now. I did send them the email below:-

 

Re Your letter dated 27 January 2012 (Ref. Retention Bonus)

 

 

As I am sure you are aware I am currently on maternity leave whilst you are consulting on redundancies for xxxx Head Office where I am currently employed.

 

You wrote to me on 27th January confirming that if I remain employed until 31st March 2012 I would receive a retention bonus of 10% of my salary. You referenced Terms attached but none were attached and as my young son has been ill all week I have been unable to chase this however I understand you have not sent any further terms and conditions to anyone you have offered the retention bonus to within the company.

 

As you are withdrawing the retention bonus offer on grounds of my maternity leave it could be construed as discriminatory. As maternity leave is almost always taken by a mother this could be argued to be sex discrimination. The only terms you have stated to entitle me to the retention bonus is that I do not end my employment withxxxx e before 31st March 2012 which is not a problem for me as I will still be on maternity leave and as such will still be employed by xxxx.

 

I would therefore request that you reconsider your position on this matter.

 

Kind regards

 

I didn't specifically say it was a grievance but would the content not make that obvious? (I hadn't found the case at the point of sending my grievance to them so have not referenced this at all but am glad I did send it quick as it appears not sending any T&C's to anyone before my complaint was put in can only be in my favour)

[Bigredbus]

Hi,

 

The important parameter in your case rests on the fact that they did not transmit any specifics (conditions) apart from the only one which is stated on their letter.

 

Your e-mail contains enough, at present, to trigger a reply... Their reply will give you more details about your next move!

 

You are doing great so far... and have found excellent information...

[jacketpotato]

As I understand it this Bonus is not contractual because there is nothing in our contract it is not a regular bonus and is being offered purely due to the head office closing down (is this right?)

Yes. You aren't doing anything "in exchange" for the bonus: it seems to be a gratuitious payment so wouldn't be a contract.

 

They have confirmed in my letter withdrawing the retention bonus that I do not qualify because I am on Maternity leave (does this make it automatically discrimination). Also as my maternity cover has been offered the bonus I must have been able to qualify if I was actually working in my position?

 

It would be discriminatory if the only reason was the fact that you were on maternity leave. However, if the bonus was (for example) for working a certain number of hours of achieving certain targets, then it wouldn't be discriminatory. They might not actually mean that you aren't getting it purely because you are on maternity leave.

 

I'm having alot of trouble getting my head around the issue with contractual and non contractual and also what T&C's might or might not be discriminatory??? Its really giving me brain ache but I really want to be able to fight my corner and understand it if (for example) they choose to address this situation during my next meeting rather than responding in writing to my email. (PS I do know that as the redundancy is now extremely complicated I need to take someone into my next meeting with me)

Bonus paid to all employees except those on maternity leave = discriminatory; because the pure fact that you are on maternity leave is being used to decide eligibility for the bonus.

Bonus paid to all employees achieving "good" or above on their performance review = non-discriminatory

Bonus paid to all employees working 20hours or more of overtime a month = non-discriminatory, even though it would be impossible for you to meet that whilst on maternity leave, because the bonus isn't being paid simply on the basis of whether you are on maternity leave or not.

 

The bonus will not be discriminatory if the employer is able to identify a non-discriminatory basis for paying or not paying it. We need more information really.

[Sparklez30]

Thanks guys - I'm still obviously not understanding contractual as to me that would suggest I was contracted to said Bonus (maybe I'm being too literal).

 

I am just so hoping they decide not to take the risk on this and offer me the same as the rest of my department I really do think it would be completely unfair if my maternity cover was to get a better payout from this than I do when she is temporary(and was supposed to finish at beginning of April anyway although I withdrew my notice to return when this all began) and I have been a hardworking member of staff for some time now

Edited February 4, 2012 by Sparklez30

[Bigredbus]

Thanks guys - I'm still obviously not understanding contractual as to me that would suggest I was contracted to said Bonus (maybe I'm being too literal).

 

No, that bonus is not contractual but may be referred to as ''conditional'', or elective upon discharge of one or more condition(s)... That initial letter sent to you [in error] contained two important junctures. One... that you remain within the employ of X until 31 March, and two, that you fulfill a set of conditions which meant to be attached to that very letter. It now appears that X (the employer) has not transmitted that set of conditions to you or to any other employee to whom that bonus could be conceided. Transmitting that document now could be contrued as imprudent, thoughtless and unprofessional, and more so, one could think that those conditions have been devised to suit...

 

I am just so hoping they decide not to take the risk on this and offer me the same as the rest of my department I really do think it would be completely unfair if my maternity cover was to get a better payout from this than I do when she is temporary(and was supposed to finish at beginning of April anyway although I withdrew my notice to return when this all began) and I have been a hardworking member of staff for some time now

 

You now must await their reply... patiently!

 

 

 

 

...

[Sparklez30]

sorry BRB I'm not very good at patient .... I shall wait ... patiently!

[Bigredbus]

Time is here your best ''friend''...

 

In all honesty, they have not much room for manoeuvre and I am convinced that you have triggered a mini war in their office... Let them come!

 

You have ''veni''... you have ''vedi'' and you will ''vici''... LOL

[Sparklez30]

Time is here your best ''friend''...

 

In all honesty, they have not much room for manoeuvre and I am convinced that you have triggered a mini war in their office... Let them come!

 

You have ''veni''... you have ''vedi'' and you will ''vici''... LOL

 

Lol I hope so - my letter was signed off from the hr director so my email went to the hr director lol ( not that I've ever met her!)

[Bigredbus]

Well, although you state that you are slow at understanding a few facts (whatever that may mean), you came to the CAG knowing that what they were trying to do was wrong and you did set yourself to find as much info as possible... I am sure that you know that you have a good chance to succeed in your quest...

 

You just have to be patient, emotionless, factual and concise...

 

You have already done about 60% of the job...

[Sparklez30]

Well I'm not usually slow I'm usually quite a bright girl but I can tell you employment/ maternity law is a tough subject.

 

I must admit I'm not that confident - the more research I do the more conflicting information I find. I think the case was a good find though as it so very closely relates. I appreciate your wider knowledge in the field and it gives me more hope on the outcome.

 

As for calm I'm calm in public lol usually helped by the fact that I've heavily researched a problem to death

 

Patience though is definitely a weak point - am very much hoping they respond Monday lol

[Bigredbus]

You are indeed a bright lady... and I keep to my words! Although I think that you should stop researching to much... Keep things simple as your case remains simple...

[Sparklez30]

Ive had my reply

 

 

Thank you for your e-mail of 3 February which has been forwarded to me. Retention bonuses are only being offered to certain employees who we need to retain until 31 March. Their bonuses are conditional on them completing certain tasks by that date, which vary from person to person.

 

 

 

We are entitled not to offer you a bonus since you are on maternity leave and you would be unable to meet the conditions necessary to receive the bonus. You are not entitled to any payment while on maternity leave (other than maternity pay). Having taken advice from a specialist employment lawyer we are confident that we have not discriminated against you.

 

 

 

I apologise again for the confusion in relation to this.

 

They are not giving in on this - I believe they are mistaken (because of that case I found) on the maternity pay bit (although it does appear this is often the case) and obviously they haven't actually supplied these extra tasks they state is different from person to person.

 

I'd also say that as they sent the letter to me in error originally they weren't going to ever send me the information for my position. Is this allowed? It would seem highly unfair to not be told of the situation regarding my maternity cover / my positions requirements.

Edited February 6, 2012 by Sparklez30

[Sparklez30]

Ps I an due a third meeting soon which considering the situation I would rather not have to put myself out for.

 

It's is the third of three meetings for the consultation and technically I haven't been informed that we are definitely going so expect this is what will be notified to me then ( which is a joke considering the retention letter makes the redundancy obvious)

 

Do we have to have face to face meetings or based on the fact that our relationship has broken down could I request that the information for the third meeting be sent to me in writing instead?

[Sparklez30]

Ok trying to formulate my response and I think I need to gather further information from them if possible so am thinking something like:-

 

 

dear xxx

 

Thank you for your email received 6th February 2012. As per my email dated 3rd February I would like to reitterate that the only Term notified was to continue to be employed to 31st March 2012. No further terms were included and I am aware that this is the case for those who have also received your letter offering a retention bonus.

 

It appears you are now stating that additional terms (tasks) were required to fulfill the retention bonus requirements. As my position is one of those that is being offered the retention bonus, even though I am on maternity leave, I will therefore require a copy of the additonal terms ("tasks") and confirmation of when these were sent to my maternity cover who is covering my role whilst I am on maternity leave.

 

I would also like to know why you did not inform during my two previous consultation meetings of this situation as it is being offered to the person covering my role I believe I had a right to this information. It is clear that had you not sent the letter to me dated 29th January in error, as confirmed in your letter dated 3rd February, that you were not going to provide me with this information.

 

Kind Regards

 

xxx

 

 

 

 

 

 

Also if they do now state there are additonal tasks does this cause an issue and making this a contractual bonus (as I believe this might have issues on whether it can be received on maternity leave can it not

 

 

And sorry I know I'm not being patient again but I assure you I have no intention of sending any response back without others opinions

Edited February 6, 2012 by Sparklez30