I will be returning to work at the end of June after my Additional Maternity Leave. I have already had to submit a grievance in accordance with company procedure as my manager has refused my (I believe reasonable) request for flexible working. I now discover that in my absence a new post has been created and filled which sits between my role and my line manager, which means I will now have to report into this new post. Although this possibility was being discussed before I went on leave (and I voiced my objection at the time), nothing had been confirmed and I have not been consulted at any point. In fact I have still not been told officially. However, the matter has been discussed at length with the other team members who will be affected and they have been asked to provide their input in reaching this decision. I was led to believe that any changes which significantly affect one’s job should be notified to the staff member during maternity leave. In my opinion, this issue constitutes a restructure and in essence reduces the grade of my job by the fact that there is now another layer of management between me and my line manager. Do I have a discrimination case at all?
You are able to make a request for flexible working for the purposes of looking after your children provided you meet certain criteria (such as, you must be an employee and have worked for your employer continuously for 26 weeks at the date the request is made). I assume that you meet the necessary criteria. Your employer must then meet certain deadlines when dealing with your flexible working request and failure to do so means that you can claim compensation from them. It would therefore be worth checking that they met all the correct deadlines. Your employer may refuse your flexible working request if it considers that one or more of the following grounds apply:
If your employer used one or more of the above grounds to refuse your request and your employer can evidence why these grounds apply then they are likely to be justified in refusing your request. However, if they did not properly explain the refusal or can not evidence the reasons for their refusal then you potentially have a claim for sex discrimination. I note that you have already submitted a grievance in relation to your flexible working request. If your grievance is not upheld, then remember that you have the right to appeal and should set out within your appeal letter why you do not agree with the reasons they gave for refusing your request. If at the end of the grievance process your request for flexible working has still been refused and you believe this was unreasonable then you may have a claim for sex discrimination. You may also be able to bring a claim for breach of the Flexible Working Regulations. You could also resign due to the discrimination and claim unfair dismissal on the basis that you have to treat yourself as dismissed due to your employer fundamentally breaching your employment contract. You should obtain further advice before taking this step.
In respect of the changes to your job while you have been on maternity leave, the first point to note is that when you return from Additional Maternity Leave, you have the right to return to the job in which you were employed prior to your maternity leave (which includes no loss of seniority). However, if reinstatement in your old job is not reasonably practicable then your employer is permitted to put you in a different position provided it is suitable and appropriate. Further, this alternative position would need to preserve your seniority i.e you should not be put in a lower position. You are therefore entitled to return to a job which is of the same status as your role was before you started maternity leave and if your employer fails to do this then you potentially have a claim for sex discrimination and unfair dismissal if you choose to resign as a result of the discrimination. You believe that by introducing another level of management the seniority of your role has been reduced. A proper assessment of your role and the affect this extra management has on your role would need to be undertaken to establish whether your seniority has in fact been affected. A change in seniority may affect your duties which would help to evidence an unlawful change in your job. It should also be noted that changes to terms and conditions can result in a redundancy situation. You should have been consulted with over the potential changes and you may be able to claim redundancy pay if you do not accept the lower position and are dismissed as a result. Also, the fact that while on maternity leave you were not consulted about the change in management whereas other staff were involved in the decision making process adds to any claim of sex discrimination you may have. In summary, the way you have been treated could allow you to claim compensation for breach of flexible working rights, sex discrimination, breach of contract, redundancy pay and unfair dismissal. You should take further legal advice on the issues to obtain more specific guidance on how to deal with your situation.