Asked to restructure assessment during maternity leave

You confirm that you are currently on maternity leave and have been advised that your department is going through restructure which means that your role no longer exists as the work has been split into two roles and numbers have been greatly reduced. You confirm that your company guarantees no redundancies where possible so will offer an alternative.

You state that, although there are a number of new roles in the new structure at your current pay grade and with similar duties, you have been informed that to be considered for the new role you need to go through a three-stage assessment and interview process. Unfortunately, this process involves giving examples of work. However, you are unable to do this because you do not have access to the work network whilst on leave and also you have been on leave for seven months, during which time the tools and systems you use has changed and you are not familiar with new processes or the departments goals. The alternative they will offer is an entry level call centre role with your pay protected, but you feel this will cause you health problems. You feel that this role is not suitable.  However, the company would not offer any leaver payments so you feel that your only option is to either accept the call centre role or resign.  You also have an outstanding appeal for a flexible working request that was rejected.

The current position is that you have made your manager aware of regulation 10 of the maternity and parental leave regulations and requested she take advice from HR and come back to you but you are yet to receive a response.  The closing date for the new roles is today (Monday), you were advised of the roles on Thursday afternoon and the interviews are next week.

Generally speaking, when a redundancy situation exists and where there is a suitable available vacancy, an employee on maternity leave is entitled to be offered suitable alternative employment with her employer before the end of her existing contact.  The new contract must take effect immediately on the ending of the previous contract and must:

• Be for work which is both suitable in relation to you and appropriate for you to do in all the circumstances ; and
• On terms and conditions no less favourable than if you had remained employed under your current contract.

Furthermore, if a suitable alternative vacancy exists and the employer fails to offer it to the employee on maternity leave then the dismissal will be automatically unfair if the dismissal is for reasons of redundancy; in short, you have the right to be offered a suitable alternative vacancy over and above other employees not on maternity leave if that vacancy is suitable, appropriate and on no less favourable terms than your current contract.

Therefore, if your manager does not return to you with a positive response shortly then you should consider raising a formal written grievance regarding the procedure and failure to offer you the vacancy which you are being asked to apply for.  You should also point out how you have been disadvantaged by being on maternity leave given that you have been unable to participate in the application process.  You may also wish to consider raising why you feel that the call centre position is not a suitable alternative for you.  If you are unable to reach a satisfactory conclusion and either decide to resign or are dismissed then you may have a claim for unfair dismissal.  In addition, you may have a claim for discrimination on the grounds of pregnancy and/or maternity.  If you would like us to review your position and advise you further then please contact Tracey Guest on 0161 672 1425.

*Lucy Flynn assisted in answering this question.

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