Acting up allowance removed after maternity leave

I’ve just returned from maternity leave after a year off. Prior to going I was ‘acting up’ for nearly a year and being paid a responsibility allowance for doing so. I was assured by the old head of HR that I would be paid that salary during my maternity leave. Upon return, it seems as if the company want to take my allowance away and have appointed a person to fill my acting up role, albeit one who does a different job to what was done before.

Should I have been given the opportunity to apply for this role and could you advise on where I stand with the allowance? None of my additional workload has been taken away, but it seems my authority and chance of promotion has.

Women in Law

 

I’m sorry to hear that this has happened to you whilst off work on maternity leave.

The main starting point is that all employees should be notified of new positions which are being advertised within the business and given an opportunity to apply for any roles which they may be interested in. Your employer shouldn’t have recruited to the new role without discussing this with you first and giving you the opportunity to apply too. It sounds as though your existing role was also directly affected by the new position because of the acting-up allowance and therefore the recruitment of the new person had implications for your role as well. As they did not notify you of this new role, you may potentially have a claim for pregnancy and maternity discrimination as you have now lost the chance to be considered for that role.

In terms of your acting-up allowance, it sounds like this has been directly affected by the recruitment of the new Head of HR too. From the information you’ve provided, it sounds as though you were paid the acting-up allowance before your maternity leave because you were acting up into the role, but the business then confirmed your salary had been updated to include the allowance on a permanent basis. If this was the case and it was a change to your contractual pay, they are not able to simply remove it without any consultation or discussion with you. Removing the allowance in these circumstances would be a change to your terms and conditions of employment and would either need to be done with your consent or they would have to show they had a good business reason for changing your pay, to justify dismissing you and re-engaging you on new terms (i.e. the lower salary). Based on the background information you’ve provided, it is unlikely that the situation would meet this requirement and again you may have a potential claim for discrimination relating to it. It may also potentially be a breach of your employment contract and you may have a claim for unlawful deduction from wages if they start paying you the lower salary without any further consultation with you.

I recommend you raise a grievance explaining clearly what happened before your maternity leave, what you were promised during your maternity leave and what you expected to receive when you returned to work. You should also explain that you are concerned that you were specifically excluded from the recruitment process for the role you were acting up into. This decision to exclude you from the process has had a direct impact on your employment as your role now looks different to the role you were carrying out before you went on maternity leave and you haven’t been consulted about this during the process. You can explain that you would have applied for the role if you had been aware of it. You should also mention that you are concerned that these decisions have been taken because you were pregnant and then on maternity leave and you are concerned you’ve been discriminated against.

The business should then follow the grievance process with you, investigate your concerns and provide you with an outcome. If they don’t do this or the outcome of the grievance doesn’t resolve the issues for you, you may potentially be able to challenge the situation in an employment tribunal. However, this is likely to depend on the outcome of the grievance. There are strict time limits to bring a claim to the tribunal of three months less a day from the date of the act you are complaining about so if you do decide to take further action you will need to act quickly.

*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton.



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