Job changed after maternity leave: ask the expert



Question

I have worked for the same company for 14 years. I am on maternity leave and I go back after having 9 months off. I had a meeting with my manager who told me that they were giving my job to the person who has been covering me on my maternity. I asked him why and he said that it would not be fair on her to be taken off the job she has been doing. He offered me a different job working in a different department. I was not happy but when I went away and had a think about it I was ok about it. I told my manager I was happy to do that job. But when I went in for my keep in touch day he then told me I was not going to be in that department but a different one, which is nothing like the role I had been doing. My job before I went on maternity leave was a Admin Team Leader. He then offered me Clothing Team Leader which I was happy to take, but when I went in for my keep in touch day to start my training on the clothing department he came and asked to talk to me and told me that I was not on that department, but he was putting me on Check outs which I told him was not right and how upset I was. Can he do this? He has messed me about the roles he has offered are nothing like the job I had been doing.


Answer by Tracey Guest

It appears from your question that you have taken additional maternity leave (AML) on top of the ordinary maternity leave of 26 weeks (OML).  When your AML comes to an end you are entitled to return to work to the same job you had before you left unless there is some reason (other than redundancy) why it is not reasonably practicable for your employer to permit you to do so.  If it is not reasonably practicable for you to return to your old job, you are entitled to return to a ‘suitable and appropriate’ alternative role. This means that the new role must be on terms and conditions which are no less favourable than your original role and the job must be on the same seniority. (Note: this is different to the position where an employee takes only OML, in which case there is an absolute right to return to the same job (save for redundancy)).

Your employer’s decision to retain your maternity cover in your place, does not seem to amount to a valid argument that it was not reasonably practicable to allow you to return to your old job.  Has your employer given any reasons as to why it is not possible for you to return to your original role and what steps have they taken to try and return you to your original role? If in reality it was reasonably practicable to return you to your original role, then you have a claim for sex discrimination against your employer for failing to comply with its duty.

If, however, it was genuinely not reasonably practicable to return you to your original role, then your employer has to show that the new role offered was suitable and appropriate. You do not explain whether the new roles offered hold the same status as your original role or whether you have been kept on equivalent terms and conditions of employment e.g. the same salary and benefits as your original position. If the role offered is not suitable or appropriate then again you may have a claim for sex discrimination.

You explain that you agreed to the new role offered and that this has now been changed again without your consent. Changing your role in this manner can amount to a fundamental breach of contract. In addition the way you are being treated may amount to a breach of the implied term of trust and confidence. Both of these breaches may permit you to resign with immediate effect and claim constructive unfair dismissal as well as sex discrimination. You may however wish to raise a grievance before making a decision to resign and you should in any event take further legal advice before resigning. Bear in mind that there is a three-month time limit for bringing the claims at the Employment Tribunal and therefore you should act promptly if you wish to take action.

 

Tracey GuestTracey Guest is head of employment and a partner at Slater Heelis in Manchester. She specialises in employment law and is also a working mum Meet our Panel of Experts


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>