Job no longer exists on return from maternity leave: ask the expert



Question

I am on maternity leave. Before I became pregnant my role was the manager of a department and I had one member of staff working for me one day a week. Just before I went on maternity leave, I was told my department would be outsourced, meaning my job no longer existed. They said they had been thinking about this for a while, although they had said they would cover my maternity leave. They assured me that they would be looking to offer me an alternative position once I returned to work, but they would think about what that position would be nearer the time. Now they tell me there are no vacancies and would not create a new role for me. They suggest integrating me into an existing department. I am concerned that this would mean I return on a lower ranking than when I left. Can they do this? If I turn down this role if it is a demotion would accepting redundancy harm any rights I might have in a case against them.  Also, because my returning role is undefined I did express a desire if possible to work from home for some of the time once I return and asked if this could be factored into the planning of my new role. I was told not to get my hopes up as they are unlikely to agree to it because they “don’t want to set a precedent within the company”. Is them not wanting to set a precedent considered reasonable grounds for refusal?


Answer by Vanessa Wheeler

You have raised a number of issues which I will deal with in broad terms, but I can’t answer all of your specific questions without speaking with you.

Your job
It may still exist. Under a piece of legislation called TUPE the transferee (the outsource employer) may have been obliged to employ you.  I would need more information on this in order to give you advice that you can rely on, but potentially if they say your job does not exist you may have claims for unfair dismissal and discrimination against both your employer and the out-source employer.

Also, the decision to out source could be discriminatory if you can show that, but for your pregnancy and/or maternity leave, your job would still exist i.e. their decision to out source was influenced by your pregnancy and/or maternity leave.

Denying a flexible working request because it would set a precedent is not permissible under the flexible working regulations. It may also be indirect sex discrimination.

I suggest you get advice on next steps.  Keep a log of all events and conversations to date and in the future.  And check if you have legal expense insurance on your home contents insurance policy.

vanessaVanessa Wheeler advises employees and employers on all areas of employment law. Vanessa has substantial experience in: pregnancy and maternity discrimination (including advocacy before the employment tribunal); flexible working issues and extensive experience in relation to compromise agreements. In a previous role she was funded by the Equality and Human Rights Commission to deal with pregnancy and maternity discrimination matters. Vanessa has commented on employment law for the Guardian and for BBC Radio 4's Woman's Hour. Vanessa can be contacted on 07852265 865 or vwheeler@setfords.co.uk Meet our Panel of Experts


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