Do I have to take a demotion as part of a restructure?

My employer is undergoing a restructure. I am currently on additional maternity leave and due back in a few months.

My existing job is no longer on the table and a proposed role has been downgraded to a term-time marketing coordinator role with a likely significant pay cut. Do I have any rights or do I have to look elsewhere if I do not take the alternative offered? It’s basically me still doing the same job with the same responsibilities, but under a different title so they can pay me less.

I note from your question that you are currently on additional maternity leave (AML). I further note that your employer has informed you that your existing role will not be available when you return from AML, but that you can return to a term-time marketing co-ordinator role, which is lower status and pay. I further note that you feel that this is the same job, under a different title just so that they can pay you less.

It is first worth noting that when you return from 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 is not practicable, by reason of redundancy, for you to continue under your existing contract, you are entitled to be offered a suitable alternative vacancy (where one is available) in priority to other employees. If you are dismissed by reason of redundancy and these conditions are not met then the dismissal will be automatically unfair. Furthermore, if your selection for redundancy is due to your pregnancy/maternity leave, your dismissal may be automatically unfair and you may have a claim for pregnancy/maternity discrimination.

The key issue for you is whether or not the role you have been offered is suitable alternative employment. This will involve consideration of elements such as pay, location, status etc. If the role you have been offered would be regarded as suitable alternative employment and you refuse it, your dismissal for redundancy is likely to be fair and if you unreasonably refuse it, you will lose your right to any redundancy payment due. If, however, the role is not a suitable alternative vacancy, then your employment will be regarded as terminated by reason of redundancy and your dismissal would be for that reason.

Please note that when determining whether a dismissal falls within the scope of redundancy, an employment tribunal will look at is whether the redundancy is genuine, as opposed to a dismissal for another reason that is being masked by a supposed redundancy. As you state that you feel the alternative employment you have been offered is basically the same job with a different title and less pay then you may have potential grounds to argue that this is not a genuine redundancy situation.

Due to the complexities of your situation and the need to carefully asses the issue of ‘suitable alternative employment’, I would recommend that you take further specific legal advice on your next steps. Please note that claims for unfair dismissal and discrimination have to be submitted to an employment tribunal within a period of three months from the date of the act to which the complaint relates and you also have to have undertaken the Acas early conciliation procedure in order for your claim to be accepted by an employment tribunal. Before submitting any claim, I would also advise you to submit a grievance to your employer in relation to your treatment.

Should you require any further clarification on the above points please do not hesitate to contact Tracey Guest of Slater Heelis LLP on 0161 672 1425.

*Helen Frankland assisted in answering this question.





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