Am I being treated unfairly due to my pregnancy?

I have recently returned to work after a period of six weeks absence caused by stress and pregnancy-related sickness. I had a discussion with my line managers about my return to work and the options available to me.

The options presented to me during the meeting were the following:
a) Return to my substantive post, but be aware that my post would be part of an organisational restructuring soon and I would have to reapply for my role. I have since found out that this role may not exist within the new structure.
b) Have an amended role created within the same business unit, but be downgraded and still face the same restructure process.
c) Accept a downgraded role (two ranges lower) within a different service area.

I was also told that regardless of being pregnant that if a restructure were to happen before or during maternity leave I would be part of this process and be required to reapply for my original or alternative position.

Please note that I did not request a role with amended or reduced responsibilities be explored but that was all that they could suggest as an alternative to my substantive post.

Before learning of the proposed restructuring, I had asked about the possibility of a short-term secondment, knowing that this was an offer made to a male colleague of mine who, following a period of sickness, was unsure whether he wanted to return to his substantive post. He was offered a secondment on the same level. I was told that, due to financial pressures and the forecasted restructuring, this could not be explored. I have since found out that this same male colleague of mine has recently had agreement to have his secondment extended and therefore I cannot help but also feel a sense of gender inequality.

For job security and being pregnant I felt I had no choice but to accept option C and be downgraded. I did so, however, reluctantly and in direct response to the proposed restructuring.

I would be really grateful of your thoughts on my situation as to whether you feel I am being treated fairly.

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In terms of the restructure proposal, I can confirm that an employer is entitled to make changes to its business and to look at restructuring its workforce when it is necessary to do so to meet with certain business demands. On this basis, there is nothing wrong per se, with your employer proposing a restructure. Furthermore, pregnant employees can be included within a restructure exercise.

In terms of the return to work meeting, the fact that the employer gave options about the capacity in which you wished to return to work is not in itself unfavourable or discriminatory. Your employer did not need to give any options and could have simply placed you under a requirement to return to your substantive post which is likely to be subject to restructure soon.

In relation to your question about whether salary should now be protected, the Protected Salaries provision may not apply to you if it is the case that pay protection only comes into force “through reorganisation or a grading review” as it states in your policy. Whilst the decision to downgrade your role was made in respect of your concerns over a proposed restructure, your role does not seem that have actually been subject to any reorganisation or pay grading review: the decision to downgrade your role appears to have been elective. On this point, I would suggest that you seek clarity from your employer as to the application of the Pay Protection provision and whether you are covered by this and get input as to what the Company’s normal position in cases of elective downgrades.

With regard to the short-term secondment request, whilst an employee is entitled to make a flexible working request and whilst an employer is obliged to consider any such request, an employer is not obliged to grant a request if they can show that the request is not viable on any one or more of the following grounds:

the burden of additional costs
an inability to reorganise work amongst existing staff
an inability to recruit additional staff
a detrimental impact on quality
a detrimental impact on performance
detrimental effect on ability to meet customer demand
insufficient work for the periods the employee proposes to work
planned structural changes to the business

Flexible working requests have to be considered on their own merits and so whilst it may not have been appropriate for the Company to refuse your request when they had granted a similar request from a male colleague it is hard to say whether there has been any unfavourable treatment here without knowing full facts. Again, if you have concerns over the decision-making process, or the potential disparity in treatment between yourself and your male colleague, you could raise this with your employer informally, or formally through an appeal against the outcome of the flexible working request or through a grievance.