Employees: redundancy during SPL

Redundancy situations are very worrying for employees, and this worry can be even greater if you are taking or planning to take shared parental leave (or any other period of family-related leave). You may be concerned that your employer will “punish” you for taking SPL, or will think you are less committed to your job, or you may be afraid that by being absent from the workplace you are “out of sight and out of mind” when it comes to deciding who should be kept on.

This factsheet explains the legal protections available to employees taking  SPL (which are very similar to the protections for employees taking maternity or adoption leave). Broadly speaking, there are two main rights: a right not to be treated less favourably because you have taken SPL, and a right to be offered a suitable alternative vacancy if you are on SPL when redundancies take place.

You should also see our employer factsheet on Employment protections for employees taking SPL.

I’m going through a redundancy process - what are my rights?

The protections from dismissal and being disadvantaged for a reason related to SPL also apply during redundancy processes. So, if during a redundancy process your employer selects you for redundancy over other employees in similar positions to you, and the reason or principal reason for your selection instead of those others was SPL-related, that would make your dismissal automatically unfair.

Examples

If your employer thought you may wish to take SPL in the future, and that was the reason, or principal reason for your selection for redundancy, that would be unlawful.

Similarly you can’t be treated worse than you otherwise would have been (short of dismissal) during a redundancy process, due to an SPL-related reason, as that would amount to a detriment.

I’m on SPL and my post is redundant - am I entitled to be slotted in to another role?

Just as for employees on maternity leave or adoption leave, the law requires employers to give preferential treatment to those on a period of SPL, when it comes to suitable alternative work. This is because the law recognises that those absent from work on such leave would be at a disadvantage during redundancy processes if required to compete alongside other employees for jobs.

A redundancy situation exists when the requirements of the business for employees to carry out work of a particular kind had ceased or diminished, or were expected to cease or diminish. If during a period in which you are on SPL it is not practicable by reason of redundancy for your employer to continue to employ you under your existing contract of employment, your employer must offer you any suitable alternative role.

This means that where there is a suitable alternative vacancy you are entitled to be offered, before the end of your existing contract, alternative employment under a new contract of employment with your employer, your employer’s successor, or an associated employer. Your employment under a new contract of employment takes effect immediately on the ending of your employment under your previous contract.

What does “suitable alternative vacancy” mean?

For the alternative employment to amount to a suitable alternative vacancy, the work in the new role must be of a kind which is both suitable for you and appropriate for you to do in the circumstances. Also, the new role’s terms and conditions, such as location, status, and pay, can’t be substantially less favourable in comparison to your previous role, otherwise the new role won’t count as a suitable alternative role. This is all judged on a case by case basis. For example, if you have to travel much further to a different location, the role may not be suitable for you.

There is a ‘vacancy’ as soon as there is an unfilled post that the employer proposes to fill, and it ceases to be practicable for you to return to your old job by reason of redundancy once it has been deleted. It does not matter if you are not proposing to return from your SPL leave until some time in the future; you are still entitled to be offered the role.

If there is a suitable alternative vacancy then you must be offered the role, regardless of whether it is convenient for your employer to do so. Thus, if the job is suitable and available, you have a right to be offered that job ahead of any other candidates not on SPL or maternity or adoption leave.

What can I do if I think my employer has treated me unlawfully?

You should raise the matter with your employer or former employer. You also have three months from the date of the treatment you complain about to raise the matter with ACAS and, if necessary, to bring a claim in the employment tribunal. It is a precondition of bringing a claim in the employment tribunal to have lodged a claim with ACAS, who might be able to help you and your employer reach a compromise solution, avoiding the need for proceedings. If you are uncertain what to do you should seek advice.

Victoria Webb, Old Square Chambers

www.oldsquare.co.uk

 


About SPLash

SPLash (SPL advice on sharing) has been created by an alliance of organisations with expertise in employment law and issues affecting parents at work. Its purpose is the sharing of knowledge and best practice on shared parental leave.

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