Without prejudice letter: made redundant on maternity leave
This without prejudice letter was written by us for a client who was told that she was being made redundant whilst she was on maternity leave (an all too common occurrence unfortunately). The employer tried to misrepresent her job role, saying that she was admin support, whereas in fact her appraisals showed that her role was more managerial. Furthermore she was not put in a pool with other employees, or offered meaningful alternative employment.
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Without prejudice save as to costs and subject to contract
Re: [Your name]
We have been instructed on behalf of [Your name] to write to you on a “without prejudice” basis, in light of the ongoing consultation with a view to her redundancy. I understand that discussions are underway with a view to resolving the matter by way of a Settlement Agreement, and we are instructed to take up correspondence on [Your name]’s behalf.
Thank you for sending us your draft proposal for a Settlement Agreement. [Your name] has also provided us with some other relevant documentation including:
- The “Business case for managing the redundancy within FSA Admin Support”, dated 10 October 2014, and her response dated 4 November;
- Your letter informing her that she is at risk of redundancy, dated 27 October 2014;
- Notes of a consultation meeting on 4 November, attended by you, [Name], and [Your name]; and
- Appraisal forms completed by her and her line manager [Name] in 2011 and 2012.
It is our position that the “severance payment” offered to our client is wholly inadequate. It is our view that there is no genuine redundancy situation; rather your intention to dismiss [Your name] arises out of unlawful sex discrimination and unfavourable treatment due to her recent maternity.
As you are no doubt aware, a redundancy situation may arise where the requirements of a business for employees to do work of a particular kind diminishes or is expected to diminish. This is not the case in relation to resource management in the FSA team of [Employer]. Yours is a healthy, growing business; and if anything both supply of and demand for resources within the FSA team are increasing. The Retain system is integral to the resource management within this and other [Employer] departments.
[Your name] did not “support the roll-out [of Retain] from an administrative perspective” as your “business case” states; rather she “was given the Retain project to implement… and she has done an excellent job in putting the project together…” (Appraisal, 2011). A year later “she understands the system to a degree that she is now assisting another department with their roll out including training” (Appraisal, 2012).
Retain is however only a part of the busy and varied role [Your name] has performs as resources manager. She works closely with senior management to make crucial business decisions on the availability and allocation of resources to projects in the FSA and other departments. Retain is a tool that she has implemented and deployed with remarkable efficiency in helping herself and the [Employer] management make these decisions and proper business forecasts on which the success of the company depends.
In the interests of brevity we do not intend to outline all the functions [Name] performs in her role as resource manager – ranging from training colleagues to assisting in organising marketing events to many others – but we refer you to her appraisal forms so that you can adjudge the same for yourself. No doubt you have many other performance indicators which will give a similar picture of a high-performing manager. Suffice to say, [Your name] is not and has never been just “admin support” as referred to in your business case.
Your business case also misrepresents the acquisition of [Company name]. We are instructed that [Employer] acquired [Company name] in July 2013. The “specialist” individual from [Company name] was in fact trained in the use of Retain by [Your name] for a number of months, and she handed over the role to this individual before going on maternity leave in November 2013. She returned from maternity leave in November 2013, after some 9 months, not 12 as your Business Case incorrectly states.
Your office manager [Name] both conducted [Your name]’s appraisals and wrote the Business Case. It is of grave concern that in the intervening period – during which [Your name] took maternity leave – she has downgraded and misrepresented [Your name]’s role to this extent. The Business case is at best misleading, and at worst defamatory.
It is clear that there continues to be a need for at least one resource manager in the [Employer] team – to suggest otherwise is absurd. According to your own business case there is another individual performing that role who will continue to do so. Therefore we cannot see any basis for your assertion that the role is redundant.
If there is a genuine need for a redundancy, which we do not accept, then it is our position that you have failed to conduct a fair and objective redundancy selection process. You have made no attempt to identify the redundancy “pool” of employees, or any selection criteria, but have simply picked out [Your name] as an easy target upon her return from maternity leave.
Further, there has been no effort – or at least no genuine effort – to find suitable alternative employment for [Your name]. Our client can produce ample evidence of this; despite her own best efforts, this aspect of the “redundancy” process has been effectively ignored.
It is our position that you have conducted this purported “redundancy” process in a wholly unfair and unlawful way, and any dismissal arising out of it will also be unfair and unlawful. The event intervening between [Your name]’s glowing appraisals and her sudden demotion to “admin support” has been her maternity leave. You have subjected her to unlawful detriments and are now attempting to dismiss her under the guise of a sham redundancy. There is a clear prima facie case of sex discrimination due to maternity.
It is difficult to over-state the stress and humiliation suffered by [Your name] who, after years of enthusiastic, loyal and impeccable service to you, is simply being discarded in this way. She is not even being permitted to return to her workplace, and is being physically excluded by you in your efforts to further de-moralise and de-skill her.
Consequently, we can identify a number of causes of action arising out of your conduct towards our client, and will pursue these as appropriate. However, [Your name] does not wish to resort to litigation and has therefore instructed us, at least at this stage, to aim towards a suitable settlement.
It is our position that the starting point for any such settlement has to be 12 months’ salary. The job markets are still sluggish, and it will take [Your name] at least this long to secure equivalent employment. Her job prospects have been adversely affected by the detriments she has suffered due to your conduct, not least her exclusion from work since her return from maternity leave months ago. From this starting point the settlement amount should be increased to reflect the loss of statutory rights and the loss of substantial benefits that our client will suffer as a result of losing her employment. In addition, any settlement amount must reflect an award for “injury to feelings” for the sex / maternity discrimination suffered by our client, which we estimate to be at least £15,000. The settlement should also be uplifted to acknowledge of the legal costs that our client has already incurred in instructing us because of your unreasonable conduct towards her.
It is our view that a greater award would be made by any Employment Tribunal which, as you know, can make unlimited awards in cases of discrimination such as this. We would also seek to recover our legal costs and the costs of issuing proceedings.
Any Settlement Agreement should also include a good reference, and we will send a copy of a reference drafted by [Your name] for your consideration at the earliest opportunity.
We look forward to hearing from you with any comments you may have on the above proposal in the hope that we can bring this matter to a mutually agreeable and timely conclusion.
Monaco Solicitors are happy to provide you with these letter templates and examples free of charge to aid you in your employment situation. If you would like professional legal assistance in your case, we are experts in employment law and only represent employees – never the employer.
If you would like to talk to an experienced employment solicitor about the details of your case, simply get in touch on 020 7717 5259 or apply for a apply for a free consultation. Our lawyers will be able to assess your situation and advise how we could help you improve your settlement package.
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