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I am currently on maternity leave, due to go back to work soon after having 12 months off. This is my second maternity leave. After my first maternity leave. I had a flexible working request to work from home one day a week agreed in a signed letter which I countersigned. It says I work from home one day a week except if I have to come in for “business reasons”. Once I had returned to work the company I worked for was acquired by another company [I don’t think it was under TUPE]. There was an agreement that all our benefits, severance packages etc would be honoured for 12 months until this September. Now the new company is saying that as of September 2015 they will no longer accept my one day working from home and I either have to come into the office for five days a week, or drop to four days, and therefore my pay will be pro-rated to account for this. I had been concerned before I went on maternity leave that this might happen and I had been assured by the old company’s HR that this was now part of my contract and could not be changed without my agreement, and if the new company did not want to agree to it then my role, as it currently stands, would be redundant. The new company disagree with this and basically say the letter doesn’t really count for anything now that the 12 months is almost up. They also said that even if it did they could say that I am required in every Friday for “business reasons” (quoting the letter). Also my role will have changed when I go back. Prior to my maternity leave I was just an Account Manager, but when I go back I will be expected to do Sales as well. Can they ignore this agreement I have in place? Are they right in what they are saying or is the previous advice that I had that this is now part of my contract terms correct?
I am sorry to hear that you have found yourself in this position.
Once a flexible working request has been agreed, it would represent a permanent variation to your contract of employment. The terms of your contract cannot subsequently be changed without your agreement and, should your employer unilaterally vary the terms of your contract without consultation, then you may have grounds to pursue a claim for constructive unfair dismissal. It would be important, however, for the precise wording of the letter setting out the agreement to your flexible working request to be considered.
Employees on maternity leave have special protection within the workplace. Employees returning from any period of Additional Maternity Leave (12 months) are generally entitled to return to work to the same job, on the same terms and conditions as if they had not been absent. However, if there is some reason (other than redundancy) why it is not reasonably practicable for your employer to permit you to return to the same job, then you would be entitled to return to a different job which is both suitable for you and appropriate in the circumstances. Furthermore, the terms and conditions of the new job must not be less favourable than they would have been had you not been absent. It is by no means a straightforward exercise for your employer to establish it is not reasonably practicable to permit you to return to your old job on your previous terms and conditions. I would expect an Employment Tribunal to scrutinise your employer’s actions very carefully if this matter could not be resolved to your satisfaction.
A refusal to continue any flexible working arrangement would also be subject to challenge on the basis of the law of indirect sex discrimination. Your employer would need to give solid reasons as to why the arrangement, which appears to have worked well previously, is no longer capable of doing so. Indeed, if your employer’s conduct and decision-making can be attributed to the fact that you have taken maternity leave, you may have a claim for discrimination on the grounds of pregnancy and/or maternity.
Another consideration is whether the TUPE regulations apply. It is important that this is checked. If a TUPE transfer took place 12 months ago, your employer would be prevented from making the changes to your terms and conditions if they are connected to the acquisition. In this respect I note your employer apparently intimated that they would be making changes 12 months following the acquisition.
I would recommend that you submit a formal grievance to protect your position. Ultimately, if you cannot resolve this matter with your employer, you may have grounds to bring an employment tribunal claim for unlawful discrimination and unfair dismissal.
I hope you found the advice helpful, but if you require any further assistance please contact me on email@example.com or 0844 984 6000.