Can my job be changed if my job share partner’s hours are altered?

I used to do a job share, but when I left for maternity with my second child my job share partner asked to change her hours to school hours to fit in with her son. They were struggling to find someone to cover my hours so they agreed to change her hours. Around two weeks later they employed a temp to do my role doing my hours and a few more. At Christmas time they offered the temp a permanent role.  I went into work to confirm when I will be returning and I was told that there have been some changes and I am going to work for another department.  I have taken nine months off on maternity leave.

As you have taken Additional Maternity Leave (“AML”) of three months leave on top of your Ordinary Maternity Leave (26 weeks) you are generally entitled to return to the same job on the same terms and conditions as if you had not been absent. However, if there is some reason why it is not reasonably practicable for the employer to permit you to return to the same job (for example, if there has been a reorganisation) then the employer has more flexibility. In these circumstances, you are entitled to return to a different job, which is both suitable for you and appropriate in the circumstances. Again, the terms and conditions must not be less favourable than they would have been had you not been absent.

If you have taken AML, then you do not automatically lose the right to your old job, your employer must show that it is not reasonably practicable to permit you to return to your old job.

I understand that your employer hired a maternity leave replacement for you and have made them permanent. This alone would probably not demonstrate that it is not reasonably practicable to give you your old job back –  a simple preference for someone else to perform your role would not suffice and your employer should still consider whether you should be offered your old job. Moving you into an alternate role in favour of your maternity replacement could amount to discrimination on the grounds of maternity.

If you cannot return to the same job, on no less favourable terms and conditions, or, where it is not reasonably practicable to permit you to return to the same job after AML, your employer does not offer you a suitable alternative job, you may have a claim of pregnancy and/or maternity-related discrimination, automatic unfair dismissal (if there is a dismissal), and/or unlawful detriment (if there is no dismissal).

If your employer offers you a role which is not suitable (i.e. on terms less favourable than the job you were employed in), then you can refuse to accept it and treat yourself as constructively dismissed (assuming there is no express dismissal). This would enable you to bring a complaint of constructive unfair dismissal. You should bear in mind that the value of this claim may be affected as it is likely that a Tribunal would deem your refusal to accept the role as a failure to mitigate you loss, i.e. you have turned down a job offer and therefore contributed to your losses as opposed to mitigating them (which you are under a duty to do in relation to any unfair dismissal claim).

Even if you accepted an unsuitable offer, you could still bring a complaint of unlawful detriment and/or pregnancy/maternity-related discrimination if the change in job or terms was because of your pregnancy or maternity leave.

If your employer fail to offer you the role within a different department I would suggest that you make a formal flexible working request for the job in which you were employed before your absence (see https://www.gov.uk/flexible-working/applying-for-flexible-working). Since 30 June 2014, any employee with 26 weeks’ continuous service has been entitled to request flexible working for any reason. Your employer must deal with your request in a reasonable manner and notify you of the outcome within the three-month decision period.

Unfortunately, you would not have a discrimination claim if your employer refused your request as you worked part time before your absence. If you worked full time and your employer refused to allow you to work part-time, or to change your working pattern, this may entitle you to bring a claim for unlawful indirect sex discrimination, whether or not the rules for consideration of a request for flexible working had been breached. This is because it has been established, statistically, that more women than men have childcare responsibilities and are therefore disadvantaged by a requirement to work full time.

If you require more tailored and detailed advice regarding your circumstances, please do not hesitate to contact me.





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