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Returned to lower paid job after I announced pregnancy: ask the expert
I’m currently 22 weeks pregnant so within the qualifying period. My accrued leave, which I am currently on, is from my previous maternity leave. My company pays SMP and then tops up the payment to my normal salary for 39 weeks and then ½ pay for 13 weeks (if taking the full 12 months off). I understand that as I cut my maternity leave short and I’ve ‘returned to work’ but am taking annual leave, a couple of weeks of the qualifying period will be ½ pay, but the majority will be my normal full salary (as it is paid annual leave). Since informing my employers I’m pregnant they have written to me (not to acknowledge my pregnancy) but to inform me that they will return me to my previous post on the lower salary at the end of my current annual leave. This will be when I am approximately 28.5 weeks pregnant. I strongly feel my employers have decided to move me back to my old substantive post (last held over 4 years ago) since being informed I am pregnant so that they don’t have to top up my SMP as much. They will not let me return to my seconded role which I was in immediately before my maternity leave began last March, stating ‘business reasons’ even though their maternity policy clearly states that if an “employee returns to work after Ordinary maternity leave (the first 26 weeks) – which applies to me – has the right to return to the same job or if this is not practicable to a suitable job with terms and conditions at least as good as her previous job” – i.e. pay. Would this still be applicable in my situation as I have a substantive post (lower salary), but was on my secondment at the time of taking my maternity leave.
I understand that you will be returning to work after a period of additional maternity leave (“AML”). Following a period of AML, you are entitled to return from leave to the job in which you were employed before your absence with your seniority, pension rights and similar rights as would have applied to you had you not been absent. Furthermore, your terms and conditions upon your return must be not less favourable than those which would have applied had you not been absent.
However, if it is not reasonably practicable (for a reason other than redundancy) for your employer to permit you to return to your old job, they can offer you another job, which is both suitable and appropriate for you in the circumstances. If the reason for your employer not being able to give you your previous job back is redundancy, then you are entitled to be offered any suitable alternative vacancy on terms and conditions which are not substantially less favourable to you. I understand that your employer has simply stated ‘business reasons’ in justification for you not being able to move into your previous seconded role.
I would query what your present job role actually is. I understand that you have been on secondment since 2009. However, your secondment agreement states that at the end of the secondment you will return to your substantive post and your secondment has been reviewed and extended over the past few years, typically, for 6 or 12 months. The last review was due on 31 December 2013 but you have not yet received any correspondence about this. It seems clear that the secondment was always intended to be temporary and that as part of the agreement, you would eventually return to your previous (lower paid) role. However, if your employer has always extended the secondment agreement but is refusing to do this now, I would question its reasons for not doing so on this occasion. If it is refusing to extend your secondment agreement for reasons relating to your maternity leave and/or pregnancy, then this will constitute direct sex discrimination and you could submit a claim in the Employment Tribunal within three months of the discriminatory act (i.e. the refusal to extend the secondment agreement).
As a first step, however, I would advise you to submit a detailed grievance to your employer. This should set out that you feel that your secondment should continue and that your employer is only refusing to extend this because of the financial effect on your maternity pay. You should state that you consider that its actions in not extending the secondment when they have previously done so constitute sex discrimination and that you would like the secondment to be reviewed as should have happened in December 2013.
If you have require any further assistance following submission of your grievance, please contact Tracey Guest on 0161 975 3823.
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Comments [1]
sophie guest says:
I have worked for 8 years in my job. The last 4 years since having my daughter, i have been part time, 3 days a week. In December my employer announced restructure and that part time jobs needed scrutiny and change. He wanted the changes to be in place for September. I am on mat leave still in september. Despite my job still existing under different hours that I can offer, it has been given to another collegue and i have been offered a wholly different role with huge changes in my working hours. My employer refuses to explain why I cannot keep my job with someone covering my mat leave. I believe it is because i am on mat leave when he wants his restructure up and running. Is this discrimination?
Editor: Could you write with a little more detail – eg is it only part-time jobs that are being restructured and has any sound business reason been given for this? have you been consulted at all as part of this process? – via our Advice & Support/Q & A page box and one of our employment lawyers will get back to you asap.