Downgrading my post after maternity leave: ask the expert


I am currently on a fixed-term 11-month contract which is due to expire while I am on maternity leave.  I would like to continue working for my employer, but they will not yet confirm whether or not they will take me back after my maternity leave.  They have told me that it’s not possible to renew a contract whilst someone is on maternity leave – is this correct?  They say that if they do decide to take me back, they will let me know – but this could be after my contract has expired. Are they allowed to do this or should they let me know before the end of my current contract? They said they may then issue a new contract when I’m ready to come back.  However, they have told me that the job I am doing may then be downgraded (and the salary too) and I may have to reapply for it – even though it will be exactly the same job that I am doing now.  Is this allowed??  It seems very unfair as I’ve been in my current post for three years and they have always been very happy with my performance. Is it possible to downgrade a post and salary for someone on their return from maternity leave?

Answer by Ruth Renton

Thanks for your question. You say that you are on a fixed term contract for 11 months and that you have been in the same post with the same employer for at least three years. Firstly you should know that fixed term employment contracts are covered by the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. This law is designed to: ensure that fixed term employees are not discriminated against or treated less favourably than permanent employees; and prevent employers abusing the fixed term employee system by keeping fixed term employees on a series of fixed-term contracts rather than offering a permanent employment contract.

It’s interesting that you have been a fixed term employee for a relatively long period of time. There are lots of reasons why an organisation chooses to employ fixed term employees. A fixed term employee is someone who is employed under a contract of employment which contains a specific start and end date and who is employed to carry out a specific task or project or it may be that it is for a specific period because it is contingent on external funding or some other external event. The reasoning behind your fixed-term contract may be relevant to its renewal.

You haven’t said the specific period of each previous fixed-term contract ; how long you will have been employed when this current contract expires while you’re on maternity leave; whether any permanent employees carry out your role at the employer and whether they are on the same terms and conditions. You also haven’t mentioned if there have been any gaps between your previous fixed term contracts and your current fixed term contract. In order to provide a complete answer, I would need to know the above answers but I shall do my best to answer based on the information you have given so far.

There is no reason why your fixed-term contract cannot be renewed while you are on maternity leave especially if it has been renewed previously without any break in employment. It may be that your employer is trying to avoid duplication because it may already be covering your job with another fixed term maternity leave contract and is not convinced when you would wish to return on a renewed contract. Rather than renewing, perhaps it is worth asking your employer to extend your existing fixed-term contract to cover the whole period of your maternity leave.

In any event, if your fixed-term contract is not renewed the law says that you have been dismissed at the date of expiry of the fixed term contract. Your employer would not need to give you notice of the expiry and non-renewal of your contract. However, you have the right to a written statement of reason for the non-renewal of your contract.

A dismissal can be fair or unfair. If the reason for the failure to renew your contract is that you are on maternity leave at the time the contract is up for renewal, it would be an unfair dismissal, sex discrimination and a breach of the Fixed Term Employee Regulations. Non-renewal of your contract could be fair, if, for example: your job has become redundant; or your employer had a genuine need for a fixed term employment contract (e.g you were employed to do a specific piece of work which was due to take the 11 months of this contract); or your fixed term employment contract was expressed to be dependent on external funding and would therefore only last if there is sufficient funding. However, in each of these situations, your employer should consider whether there is any suitable alternative employment available which you could be offered – failure to do so could make the dismissal unfair.

If your job has become redundant, you have the same redundancy rights as a permanent employee. As you have more than two years’ continuous employment with your employer you will be entitled to a redundancy payment. You will also be entitled to be offered any available suitable alternative employment on terms and conditions which are not substantially less favourable to you. If you are not offered a suitable alternative vacancy it could make your redundancy an unfair dismissal, entitling you to make a claim at an Employment Tribunal.

Your employer has said that your job and salary may be downgraded while you are on maternity leave as part of any renewal but has not explained why. It is difficult to see why or how your employer can anticipate this at this stage, particularly as your contract has been renewed previously, presumably on the same terms. Perhaps your employer knows that external funding will be reduced? If you are offered a contract on less favourable terms than your current contract, you can refuse to accept it and try to negotiate with your employer. If you are unsuccessful, the non-renewal will again be a dismissal and you may be able to make an unfair dismissal claim at an Employment Tribunal. If the reason for the downgrading is that your employer is taking advantage of you while on maternity leave at the time the contract is up for renewal, it would be sex discrimination and a breach of the Fixed Term Employee Regulations.

One other point, the Fixed Term Employee regulations says that an employee can only be kept on successive fixed term contracts for up to four years. Unless an employer can show good reason why you need to remain on a fixed term contract, if your contract is renewed after four years you will become a permanent employee. As I said above it’s not clear whether you will hit the four year mark with this renewal or whether you have another year to accrue.

RuthRentonPrior to establishing Renton Associates Limited, Ruth Renton has many years experience of advising both employers and employees on all aspects of employment law. CIPD trained, Ruth is also an experienced employment law trainer and has written and facilitated employment law and skills training, both in-house to employers and through public seminars. Ruth is a passionate believer in training staff to manage and work within the law, helping to create a positive diverse workplace while providing a defence for employers. Approachable and articulate, Ruth has advised a broad range of clients ranging from charities and the public sector to small owner managed businesses and FTSE listed companies. Qualified since 1995, Ruth’s background is City based (Eversheds, Allen & Overy and Orchard Solicitors). As a non-practising solicitor, Ruth views herself as an employment lawyer with additional skills. Ruth is also proud to be a working mum of four kids – her biggest challenge! Meet our Panel of Experts

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