This is a concerning situation, particularly if the company is large and has significant...read more
Before my first maternity leave I was an assistant manager and worked 40 hours a week. Prior to my return I requested flexible hours and was told this would not fit the business and all managers had to work over five days. Therefore I had no choice but to be demoted to a team member working four days a week. I have just come back from additional maternity leave for my second child and have given them advance warning that I would like to do 20 hours a week through a flexible working request. I was told there would be a position for me in a prep room. However, when I actually returned to work this was not the case and I was working on the counter which I had previously explained I did not want to do. I got upset and left. They advised they would ring me the following day see what they could do. They did in fact ring and told me the only job they had at the time was a cleaner as this is all they had that would suit my hours. I did a shift as I felt I had no choice, but I got upset because in the space of two years I had gone from an assistant manager to the cleaner and all because I have had two kids. I felt I had no other option other than to resign from a job which I used to love. I’m not one for making a fuss, but I just wondered if there is anything I could do as financially it’s a struggle now for us with no wage and I am seeking work elsewhere. I obviously don’t want this to happen to anyone else. I can’t believe a company I felt so proud to work for and worked so hard for can think of me like this.
I note from your question that you were previously contracted to work 40 hours per week in your employer’s warehouse. You returned to work recently after a second period of maternity leave.
The starting point to your rights on returning to work after a period of maternity leave is that when you return from additional maternity leave (AML) you are entitled to return to the same job on the same terms and conditions of employment as if you had not been absent. If it was not reasonably practicable for your employer to allow you to return to your old job then you should have been offered a suitable and appropriate alternative on terms and conditions that were no less favourable than the job you were doing prior to your maternity leave.
I understand that your old job was offered to you but that you were unable to continue in this role due to childcare commitments. Whilst on maternity leave, you therefore made a formal flexible working request to change your hours to 20 per week. I understand that this was rejected but that you were informed that you could work 20 hours per week in the ‘prep room’.
When you submit a flexible working request, your employer is under a legal obligation to deal with it in a reasonable manner. Furthermore, it can only reject your request on certain specified grounds, these being : –
You should also have been notified of your employer’s decision within three months of the date of your request for flexible working.
I understand that as part of the flexible working process you accepted the new role in the prep room, working 20 hours per week. If you reached agreement with your employer following the submission of your flexible working request, the new work pattern will be a contractual variation to your employment, unless otherwise agreed. If a formal agreement for you to work 20 hours in the prep room was in place, this was therefore the role that you should have returned to following your period of maternity leave. As stated above, I understand that your previous role was offered to you at this point but that you were unable to return to this role on a full-time basis.
I understand that when you returned from maternity leave, you were in fact placed on the counter, rather than in the prep room, a role which you had previously explained that you did not want to do. You state that when you brought this to your employer’s attention they offered you a role as a cleaner, but you then felt compelled to resign. Your employer stated that your previous role was no longer available for you.
In the situation you have described, you have several potential claims available to you and I would urge you to take legal advice and/or to contact Acas as soon as possible. You may be able to claim constructive unfair dismissal. This is effectively where your employer has committed a fundamental breach of your contract of employment and you have resigned in response to your employer’s breach. Your employer’s handling of the flexible working process, it’s failure to allow you to work in the prep room once this had been agreed and then it’s refusal to allow you to return to your previous role may well together constitute a fundamental breach of your contract, entitling you to resign and claim constructive unfair dismissal. The time limit for this claim would be three months from the date of your resignation.
You could also have a claim for sex discrimination in these circumstances. This time limit for such claim is three months from your employer’s discriminatory act, or the last of a series of acts if you are able to like a number of acts together – you would argue that this is your employer’s failure to allow you to work in the prep room/to return to your old job. Please bear in mind that for both claims you are required to go through the Acas pre-conciliation procedures before a tribunal will accept your claims. You may also have a claim under the flexible working provisions due to your employer’s unreasonable handling of your flexible working request. Such claim however would need to be submitted within three months of your employer’s decision on your flexible working request and again, you would need to go through the Acas pre-conciliation procedures before a tribunal would accept your claim. It is not clear from your question when your employer formally responded to your flexible working request and I understand this specific claim may now be out of time.
Should you require any further clarification regarding the above issues then please do not hesitate to contact Tracey Guest on 0161 975 3823.
*Helen Frankland assisted with this answer.