On reducing my working hours after maternity leave last November the deal agreed with my boss was that I could continue to work from home as I live a long way from the office. Recently two other members of the team have resigned and new staff have been recruited. In conference calls my boss has said that me working part time is causing difficulties. He says he needs really me to be in the office to train new people and suggests I might want to return to full-time working. I said that this was not an option for me. I now feel that I am being pressured and there are references to me being paid much more than others in my team. I previously was asked to sign a new contract with no reference to bonus payments. My previous contract included performance-related bonus payments of up to 10K a year and I have therefore been refusing to sign it. I genuinely feel there may be a strategy to get me to resign from my job. What can I do?
I am sorry to hear about the issues you are experiencing at work.
For the purposes of this response, I have assumed that your working arrangements from November 2021 were a permanent contractual change and not temporary. Therefore, your employer has asked you to change your contractual part-time hours of work to full time and your contractual place of work from home to the office. You feel unable to agree to this in part due to your caring responsibilities and the distance between home and the office. In addition to this, your employer has proposed to remove bonus payments from your contractual benefits.
Alongside these issues, you have witnessed comments to the effect that you are paid much more than the other team members and comments in front of the team that your 2.5 days’ working week is causing difficulties.
Typically, an employer can vary the terms of your contract of employment if you consent. If you do not agree, then you should be included in a full consultation process where you have the opportunity to explain the prejudicial effects arising from the proposed changes, before they are implemented.
ACAS has guidance on the consultation process required to change employment terms where consent is not given, which will give you some helpful information as to what should have happened already and what to expect.
During a well-run consultation process, an employer’s objective should still be to obtain your agreement to the proposed variation. Sometimes this can involve changing the initial proposal to address the prejudicial effects you put forward in the consultation process to make the proposal more attractive. It is therefore very important that you make sure your employer is aware of the particular issues that their proposals present for you. Be as specific as you can be, to make sure that you are properly understood. Follow this up in writing as part of a consultation process in order to ensure that there is a record of the concerns you have raised.
If you employer is seeking to remove a contractual bonus, as above, you should be fully consulted. If the rationale for the proposal has not been explained, and you have not been invited to comment, then I would advise you to formally request an explanation in writing as to why the bonus has been removed from the new contract offered to you.
If you believe that they are in fact trying to make you resign, then (if your suspicions are correct) this could form grounds for constructive dismissal. You can only claim constructive dismissal if you resign and have at least two years’ continuous service as at the time of your termination of employment. You would need to prove that your employer acted in a way which was wrong or unreasonable, and fundamentally breached a term of your contract and you resigned in response to that breach and not something else. There have been cases of constructive dismissal arising out of a sham consultation process which was in reality, designed to hide the real reason for contractual changes. I would strongly recommend seeking legal advice on your particular circumstances to understand the merits of a constructive dismissal argument in your case if you are considering resigning.
You could also have an indirect sex discrimination claim if, despite your feedback as to the detrimental effect on your ability to discharge your childcare responsibilities because of the changes, you are never the less forced to comply under protest. In very general terms, indirect sex discrimination occurs where a “provision, criterion or practice” is applied by your employer to everybody but it causes a particular disadvantage to you and (in your case) women generally. This is because it has previously been accepted by tribunals that women are more likely to be the primary carers for children (please note, this is always subject to evidence in the particular case and is not a binding finding on all cases of this type). Hypothetically, a policy that only allows full-time working could place women at a particular disadvantage when they are more likely to be dividing their time between childcare and work. An employer can justify the particular policy, criterion or practice if it can show that it was a “proportionate means” of achieving a “legitimate aim”. Again, I would recommend that you take legal advice on your particular circumstances in this respect.
Ultimately, if you are not happy with the proposed changes to your terms of employment then you should not agree to them without a full consultation process and opportunity to have your say. If you believe that your employer may have missed the issue that their proposals may be indirectly discriminatory, then you should raise this with them as part of that consultation process.
If you believe that inappropriate comments have been made, then you could raise this either informally or formally under your employer’s grievance process to have it properly investigated.
Finally, if you are considering resigning because you are unable to resolve this internally, seek legal advice on your potential claims. Do not delay seeking out the advice, as the more time that passes between the acts complained of themselves and your decision to leave, the weaker your constructive dismissal claim can be.
*Gemma Bailey is the Head of Howells’ Employment Department. Gemma advises individuals and companies on the full range of employment issues.