Redundancy on maternity leave: Grievance & without prejudice letter

FAO: [Name of employer’s manager handling the case]
By email only to [Email address]

Dear Sirs

Our client: [Employee’s name]

We write in response to [Name of manager]’s email of [date]. We were appalled to discover your position in relation to [Employee]’s dismissal, and we can confirm that [Employee] will not simply allow [Employer] to proceed with such irregular conduct.

Personal redundancy

We have evidence of two separate conversations with [Employee]’s line manager [Name of line manager] via What’s App and Skype saying that this redundancy was personal and had been planned for a while. [Line manager name] stated that it was organised by [Name, CEO of Employer] who did not like [Employee] because of her close relationship with [Name of CEO of sister company]. The messages between [Employee] and [Line manager name] are set out below for your ease of reference:

What’s App messages:

• [Line manager] – I am sorry I couldn’t prevent this. Please go ahead and seek legal advice.
• [Employee] – I already have, boss. I now think this is personal.
• [Line manager] – that we know for sure – any idea from who?
• [Employee] – [Name of CEO] – who else? Is it because he is trying to get at [CEO of sister company]?
• [Line manager] – Not sure of his motive, because you were apparently on his personal hit list.
• [Employee] – well that’s really unfair.

Skype messages [all dated]:

• [Employee] [CEO of sister company] called yesterday, so I told him what happened
• [Line manager]: Just got to know that…they had wanted to let you go, and also [Name of HR manager]
• [Employee]: Why’s that? Is it Anti-Australian?
• [Line manager]: Not like that but a lot of people were under the impression that you actually were let go along with [Name of HR manager]
• [Employee] So what does that mean?
• [Line manager]: [It means] that this was planned by [Employer] long back, but [CEO of sister company] delayed it as much as he could
• [Employee]: So regardless of any cost-cutting we did, I was going to lose my job anyway because [Name of CEO] wanted me out?
• [Line manager]: Looks like it…

You say: “In fact, the UK business has been unprofitable for a long time and when the HR Manager was made redundant last year the correct financial decision would have been to make [Employee]’s position redundant but we did not do that due to her pregnancy.”

However [Employee] responds to this as follows: “[HR manager’s name] was notified of her redundancy in January [last year’s date] and it became official at the end of her maternity leave in April [last year’s date]. I did not fall pregnant until late March [last year’s date], I was not aware of my pregnancy until late April [last year’s date] and did not inform the company of my pregnancy until late June [last year’s date].”

Please explain therefore why you say in your email of [date this year] that you knew about [Employee]’s pregnancy in January [last year’s date], before she was actually pregnant? Given that your email was sent openly and not without prejudice, we reserve the right to use that in court to show that you are deliberately attempting to distort the facts.

Redundancy pay

We are aware that other members of staff who have been made redundant have been given an additional number of months’ pay plus along with their notice pay and visa extensions. This is the minimum that [Employee] should receive, and refusing to pay her this is in itself a discriminatory act.

Injury to feelings

You say: “We are not unsympathetic to the fact that [Employee] has recently had a baby.” But [Employee] was sent What’s App messages from [Name of line manager] 9 days after delivering her baby through an emergency C section and told to expect bad news. [Name of line manager] then went on holiday for 2 weeks whilst [Employee] was left in limbo, causing her huge amounts of stress and anxiety to the point where her Heath Visitor notified her Doctor that she is at risk of Post Natal Depression caused by [Name of employer].

Given that [Employee]’s residency in the UK is tied to the [Employer] work visa, the timing of this move was reasonably foreseeable to cause injury to her feelings. She was also forced to move out of her flat with 2 months’ notice without any formal communication of redundancy from [Employer].

Regarding [Employee]’s visa, you say: “we were happy to pay for legal advice for [Employee] so that she could understand the situation regarding her visa but now that she has instructed you we will leave that to you to take up.”

Monaco Solicitors are specialist employment lawyers, we are not immigration lawyers. This would be like asking a heart surgeon to perform a knee operation. Your approach on this matter has caused [Employee] to fear having to leave the country with a baby too young to travel long distances, without proper notice or consultation and having already lost her job and her home.

Selling insurance under [Employee]’s name

[Employee] is still the authorised representative for [Employer]’s sale of insurance from its UK operations. She has pointed this out to you but still you have her registered and not changed her name to anyone else’s. [Employer] therefore appears to be selling insurance to the public under false pretences.

Alternative employment

In [Employee]’s meeting with [Name of line manager], [the line manager] informed her that [Employer] would not be looking for alternative employment for [Employee]. Given that [Employee] travelled over from Abu Dhabi to work in London for [Employer], then [Employer] should have considered alternative employment for her not just in the UK but under its operations globally. [Employee] also offered to go part-time, effectively halving her hours, yet she was not consulted about her offer.

Transfer of Undertakings Protection of Employment Act

[Employer] also has two sister companies which both own 50% of [Employer] which [Employee] could have worked for. [Sister company 1’s name] have a large office in London and it will continue to carry out some of the functions that [Employer] was performing. This is confirmed in the email from [Name of employer’s senior manager to the other 2 CEOs] as summarised below:

This is therefore a TUPE transfer situation and [Company name] will be added into any court claim which [Employee] may be forced to make.

Length of service

You state that “[Employee name] has held her position in [Employer] (UK) for less than two years and is therefore not eligible for a redundancy payment.” This is incorrect. [Employee] has responded to this as follows:

“I have been employed by the company since [date over 2 years ago] and have an employment contract that was submitted to the Home Office stating that I have started at the business on the [date over 2 years ago] signed by [Name] the CFO. I also have a lease agreement starting on the [date over 2 years ago] with a Swift copy of the payment of 6 months rent from the Abu Dhabi HO. There are also official notarized documents stamped on the [date over 2 years ago] stating I work in the UK for my visa. There is also a notarized letter from [CEO’s name] stating that the UK business was registered on the [date over 2 years ago] and which I have forwarded to you already.“

In the UK courts, a Judge will not look at the contract of employment document in isolation but will consider the context of the employment situation in general when deciding length of service. You have informed the UK Home Office that she was employed by your UK entity from [date over 2 years ago]. We are therefore 100% confident that her length of service is over two years. This means that you are infringing her rights not to be substantively and procedurally unfairly dismissed. You will also bear the burden of proof to show that in relation to this matter you are not discriminating against her on the basis of her maternity.

Tax bill

You say: “Regarding outstanding tax on her benefit (the apartment) this is to be settled by [Employee name] with the Inland Revenue directly.”

Your suggestion that [Employee] should pay the tax bill on the apartment is utterly disgraceful. The flat operated as [Employer] head office and still does. The UK [Employer]’s entity is registered to the flat. [Employer] has paid all the rent so far, as per [Employee]’s contract of employment. Therefore any tax due on the rent is expressly and/or impliedly to be paid by [Employer]. [Names of 3 senior managers] have all informed [Employee] directly that[Employer] will be paying this bill.

The only reason that the tax bill is in[Employee]’s name is that she did [Employer] a favour when helping to set up the UK business – now you appear to be taking advantage of that. Again, in the absence of any rational explanation for your position here, it must be assumed that this is more discriminatory conduct by [Employer] aimed at [Employee].

Out-of-Court Settlement – Without Prejudice

As discussed on the call between our [Name of lawyer] and your [Name of manager handling the case], [Employee] would accept an amount in a settlement equivalent to 6 months gross pay, being £ [£ amount], in addition to your paying the tax bill, a contribution to legal fees for a settlement agreement in the sum of £ [£ amount], and subject to contract.

We would also like written confirmation that [Employee]‘s employment will end on [date] at the end of her 3-month notice period.

This is the final offer and will remain open until 4 pm on [date], failing which [Employee] will have no choice but to issue court proceedings against [Employer], [Names of the 2 other sister Companies] and also individual members of your management teams, without further notice.

Yours faithfully

[Lawyer name]