Can my acting-up role be ended due to maternity leave?

I understand that up until your maternity leave, you were acting up a role with corresponding pay. You were initially meant to be in this new role a short period, but continued beyond this date without any issues or further communication regarding end dates. You returned from maternity leave only to discover that you had been put back to your previous role. You have been advised that this change is contractual, but no documentation has been provided to that effect. All requests to be provided with copies of these documents have also proved futile. I would note that we are unable to advise fully as we do not know all the background, but on the basis of the above, the general position would be as follows:

Acting-Up Role

It is not clear whether you signed a written agreement prior to taking up the acting-up position. In these situations, it is often beneficial for both the employer and employee to have entered into a written agreement clearly defining the terms and length of the acting up role to avoid any ambiguity and issues such as those raised in the query. In the absence of a written agreement, it may be possible for you to argue that your acting-up role crystallised into new contractual terms through custom and practice due to how long you were in the acting role for and the absence of any communication regarding end dates. The general common law contract position that a contract may only be amended in accordance with its terms or with the agreement of all parties also applies to employment contracts. Therefore, where the acting-up role has crystallised into new terms, being put back into your substantive role without your consent could amount to a breach of the newer contract. If your employer insists on the change without your consent, you could consider a claim for breach of contract. If you continue working for your employer, you would need to make it clear that you are working under protest to avoid the risk of being deemed to have consented to the change. If the change is significant (which appears to be the case here), an alternative could be for you to resign and claim constructive dismissal. I would note, however, that the above are not decisions to be taken lightly and you would need to take specific legal advice before doing so.

Overpayment of wages

An employer is allowed to make a deduction from an employee’s wages where the purpose of the deduction is to recover an overpayment of wages or expenses the employee has incurred. They are allowed to do this regardless of the reason why they overpaid the employee, including if it was due to an administrative error. Once this is the case, an employment tribunal does not have jurisdiction to hear any unlawful deduction from wages claim. You may instead be able to bring a breach of contract claim against your employer in the civil courts on the basis that the employer led you to believe that you were entitled to the acting-up pay and you have changed your lifestyle as a result of that. I would note, however, that nothing stops your employer from equally putting in a counterclaim against her you any outstanding overpayment if you pursued this route. The case law in this area suggests that, in making a finding, the courts would consider whether in all the circumstances it would be unjust to require an employee to repay the monies back and relevant factors could include the size of the sums being deducted and the resources available to the employee e.g other sources of income. The fact that you did not know of any overpayments (due to you receiving the normal acting-up pay that you expected to receive) and your childcare arrangements being based on the acting-up salary would also be relevant in this regard. Where it is possible for the employer to demonstrate that you had knowledge of the overpayment, but kept quiet about it to receive the benefit of money you were not entitled to, you may not be able to rely on the above.

The above, however, is dependent on the view a tribunal would take on the acting-up salary. If, as discussed above, the terms of the acting-up role have crystallised into a new contract, it would be possible to argue that the acting-up pay is the correct pay the employee is entitled to and would therefore not constitute an overpayment. In that case,  any deductions by the employer would likely be deemed unlawful in the absence of any contractual or statutory provision for them to do so entitling you to bring a claim for unlawful deduction of wages in the tribunal. An employee’s written consent would also normally permit an employer to make a deduction from their wages, but that does not seem to be the case here.

Possible discrimination

In an attempt to recover overpayments (in this case making deductions from an employee’s wages), an employer is required to do so consistently to avoid breaching any other legislation. For example, you could have a discrimination claim if your employer had always overlooked payments such as this in the past, but are looking to do so now because you went on maternity leave. It may also be possible to argue that a policy where acting-up ceases upon maternity leave is discriminatory towards women as men do not take maternity leave.

Next steps

If you have not already done so, it may be worth raising a formal grievance with your employer in accordance with their grievance policy in the first instance (I understand that attempts at informal conversations have yielded very little results so far).This will, hopefully, mean that the matter is investigated properly and may lead to some form of compromise. Doing so will also stand you in good stead further down the line in respect of any tribunal compensation in the event that there is ultimately a breakdown in the employment relationship and you were to have a claim for unfair dismissal.

*Albert Mould assisted in answering this question.

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