Demoted just before going on maternity leave?: ask the expert

I’m on permanent contract in my third trimester of pregnancy. My employer is fully aware about it. I’m going to start maternity leave next week, but last week there has been an announcement about changes in structure of my department, although there will be no redundancies. Currently I’m on the position graded level 5. However my personal grade is level 4 (which means that I’m performing in a higher graded job for less money).  In the new structure, my employer has proposed a position which is graded as level 4. The work profile and the role will  be different to what I’m currently doing. They tried to convince me this is not a demotion as this will only be a change ‘in name’ and there is no significant change in my role profile. Can this change be made without any consultation and any official written information? Taking into account I’m pregnant and starting maternity leave can they change my position and grade just like that? No one else in my department is in the same position and I’m the only one who is pregnant. Is this case for discrimination? Can I appeal their decision? So far I have only had a phone conversation about this. There is nothing in writing.

Where the need for the type of work an employee does has diminished or ceased, or where a reorganisation results in a role being removed from the structure, this is typically a redundancy situation which would require consultation and an exploration of other suitable alternative roles.

Rather than approach this as a redundancy situation, your employer is instead proposing to make a change to your terms and conditions of employment.  Sometimes the contract of employment can expressly allow for variations to be made, but this generally only applies to minor administrative amendments, and not fundamental changes.  I don’t have the details of the specific changes your employer proposes to make, but if it involves changing your role then this would be classed as a fundamental change and making it without consultation or agreement would be breach of contract.

The preferred route for an employer seeking to make this type of change is to get your agreement to the variation and issue you with a new contract, or a side letter amending your existing contract.  This usually follows a period of consultation which would allow you to air your concerns with a view to reaching an outcome which is agreeable to both parties.

Another option if the employer cannot get agreement is to dismiss on the existing contract (with notice) and issue a new one for the new role.  This is a dismissal at law and, provided you have more than 2 years’ service, would allow you to claim unfair dismissal.  Your employer would then be required to put forward legitimate business reasons for its actions.

If your employer simply imposes the change on you, without your consent, then assuming the change is fundamental (and again that you have more than 2 years’ service) you would be entitled to resign and claim constructive unfair dismissal.  A constructive dismissal claim will require you to show that (a) your employer breached a fundamental term of your contract, (b) you resigned in response to the breach and (c) you did so without delay.  If successful in your claim you would be entitled to compensation.

Where an employer unilaterally imposes a change and you do not resign but still wish to claim breach of contract (known as “standing and suing”), you must take care that your actions do not indicate implied acceptance of the breach.  You can do this by either refusing to work to the new terms or working under protest, making your disagreement clear.

In terms of discrimination, you are right – whilst you are pregnant and right up until you return to work from maternity leave you are in what is called the “protected period”.  During this period, you have the right not to suffer discrimination on the grounds of pregnancy or maternity.  Pregnancy and maternity discrimination can occur when an employer treats a female employee unfavourably during the protected period either because of her pregnancy or because she is exercising her right to maternity leave.  We would need to consider the issues more closely to determine if this particular decision by your employer, which is more detrimental to you than to your colleagues, is because of your pregnancy.   If you were to succeed in a claim for pregnancy and maternity discrimination, a tribunal will generally award compensation (including a sum for injury to feelings). The tribunal may also (or instead) make a declaration as to the parties’ rights and/or make an appropriate recommendation.

You can appeal against the decision if this has been given as an option and if this does not resolve matters I suggest raising a formal grievance, registering your complaints, prior to taking further action.  The company should then hold a hearing with you and investigate the issues and provide you with an outcome and the right to appeal.  Note that it can affect your compensation if you do not exhaust the internal process before lodging a claim.

 




Comments [2]

  • Paul Lariat says:

    I imagine that there are more than a few men read Mumsnet but after my partner became pregnsnt I have found it a valuable place to get information. She is now in her third trimester and we are expecting our baby in early April. The other day she cane home from work in tears. Her Local Authority boss is finishing her secondment at an advanced I – grade and she is being stepped back into a role at an H – grade which is being made redundant. Two other staff members who were seconded at the same time 14 months ago will be keeping their posts. When questioned my partners boss said that at worst she might expect to have to apply for a H – grade job and if she weren’t successful go back to a g – grade administration role. Then she apparently stated “I bet you wish you’d never got pregnant now.” Obviously pretty livid and I’m seeking some advice.

    • Mandy Garner

      Mandy Garner says:

      Hi Paul,
      Was she at a H grade before she went on secondment? What reasons has she been given for the role being made redundant and were the other two people doing the same, ie has her role been singled out for redundancy because of her pregnancy and should all those returning not have been in the redundancy pool if they do the same job – see https://www.workingmums.co.uk/advice-and-support/being-made-redundant-due-to-pregnancy-ask-the-expert/? Has she been consulted as part of the redundancy process as she should be? If she has been singled out for redundancy because she is pregnant that would be illegal and she should consider lodging a grievance to that effect in the first instance. As part of the redundancy process she should be offered any suitable alternative [ie on similar terms and conditions] or be offered redundancy. If she is in her third trimester she would still qualify for SMP no matter what happened afterwards.


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