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I am a business manager. I was TUPE’d two years ago and I’ve just recently returned back from a 52-week maternity period. During my leave I stayed in constant contact with my employer and nearing my return I had telephone meetings that confirmed my start date. During that period, I expressed my fears that my role would be eliminated, and was told that my role and my skills were needed and desired. My first day back pretty much confirmed my fears and weeks later, I sit at a desk with no work to do. The team I once led have now been divided amongst other staff (I was told this was due to an impending restructure) and the workload I was promised hasn’t materialised. Although I am grateful for the opportunity my employer has given me to work two days from home and work extended hours, I still sit around either in the office or at home with nothing to do. What can I do about this situation from a legal stand point?
It seems to me that there are two issues to consider here. The first is whether you have effectively been discriminated against as a result of being absent on maternity leave when the purported restructure took place. The second issue is whether your employers have complied with their duty to offer you the right to return to the same job or, if this was not reasonably practicable, a suitable alternative job, at the end of your maternity leave. In order to answer both these questions, I would require further information in relation to the precise nature of the restructure that took place during your maternity leave and the work you are undertaking at present.
You may be aware that during the period of your maternity leave, your employer should not treat you unfavourably because of your pregnancy or because you have exercised your right to maternity leave. You state that during your maternity leave the team you once led was divided amongst other staff, due to an impending restructure. It is unclear whether you were fully consulted in relation to this restructure and the effect that it would have upon your employment. You may have a claim for pregnancy and maternity discrimination if this was the case. Indeed, if the reorganisation created a redundancy situation, and an alternative role was created that you would have been able to undertake, you may also have arguments that you should have been offered this role in preference to any other employee because of the special protection afforded to women on maternity leave in redundancy situations. However, to properly advise on this, I would need to know full details of the relevant restructure and what information was provided to you at the time in respect of it.
I note that certain representations appear to have been made to you that you would not be prejudiced by the restructure, and indeed you were “promised” a certain level of workload on your return. This gives rise to a potential claim for constructive unfair dismissal, as if your employer has misled you and/or unreasonably departed from earlier representations that it made to you, you could argue that your employer has breached the implied term of mutual trust and confidence that should exist in any employment contract.
There is then the issue of the role that you have been undertaking since you have returned from maternity leave. Your primary right is a right to return to the “same job” that you were undertaking prior to your maternity leave. in considering whether the job you have returned to is the “same job”, regard would have to be had to what work you were actually undertaking prior to your maternity leave. If it was not “reasonably practicable” for your employer to return you to the same job on your return, because of a genuine business reorganisation, then your employer would be under a duty to offer you a suitable alternative job, having regard to the fact that you have taken a period of additional maternity leave.
However, the job must be both suitable to you and appropriate in the circumstances. If the work that you are presently undertaking is not suitable for you or appropriate in the circumstances, then your employer will be at risk of a claim for pregnancy and maternity discrimination and automatic unfair dismissal. There may also be a constructive redundancy situation if there is simply no work for you to undertake. Again, however, I would need more information in relation to the work that you have been required to undertake on your return from maternity leave and how this has differed from the work you undertook prior to going on maternity leave.
Clearly, you have very valid concerns in relation to the job that you have returned to and I would advise you, in the first instance, to raise a grievance about this utilising your employer’s internal grievance processes. You should also take steps to obtain urgent legal advice as delay in taking any action may prejudice your position.