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Do I need to accept lower pay for less hours: ask the expert
Before my maternity leave I was a full-time manager. I am due to go back soon from maternity leave. I have put an application in for flexible working to go to part time – 25 hours. As a manager you are not allowed to be part time so therefore I would have to be demoted. What I am unsure about is are they allowed to lower my pay due to this demotion?
Your question in relation to whether your company is allowed to reduce your pay when they demote you for having requested part-time work as a manager is coming from the wrong starting point – regardless of your level of seniority, you have a right to request flexible working and your employer would be under an obligation to consider it seriously. A policy (even if unwritten) which makes it clear that all managers would be refused flexible working if they applied or risk demotion would be fundamentally flawed and would run the risk of being discriminatory on the grounds of sex of itself.
The correct approach that should be taken by your employer in considering your formal request to work 25 hours is to look at your position as manager and see whether your request could be accommodated in some way, for example, acceptance of the reduced hours or perhaps to enter into a job share arrangement. That is not to say that your employer must accept your request for flexible working, but must not reject it out of hand. It can justify such a refusal under the Flexible Working Regulations citing one of the 8 reasons for refusal, but it can still run the risk of a sex discrimination claim despite this. An indication that you will only be considered for flexible working if you accept a demotion would lead to you suffering a detriment as a result of your request and appears on these facts to give you good grounds for make a sex discrimination claim. As I have mentioned it should not matter about your seniority. In Given v Scottish Power Plc Mrs G wanted to start job sharing after her maternity leave but her company told her this was not possible with someone of her level and ruled out any other options. The tribunal found that there had been indirect sex discrimination.
I suggest that you go back to your employer and indicate that your flexible working request was for consideration for your current job and not to be demoted from your position to a lesser role where, you suspect, you would be on a lower salary. You are, of course, expecting to be on a lower salary as a result of working lesser hours, but it should be a prorated amount of your original salary not a lesser salary as a result of the demotion. If this informal approach does not work then a formal grievance should be raised. If this is refused and an appeal is too, then you should contemplate resigning and claiming constructive dismissal on grounds of total erosion of trust and confidence combined with a sex discrimination claim.
I trust that this helps. Clearly you ought to get advice if you are looking to take it further to the tribunal. I or one of my colleagues would be happy to help on a chargeable basis, should you look to take matters further.
Whilst every care has been taken in compiling this answer, WorkingMums cannot be held responsible for any errors or omissions. This information is not intended to be a substitute for specific legal advice.
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Comments [1]
Anonymous says:
Hello,
I’m not sure if I understand the law on this, but…
After 9 months maternity leave I returned back to the same place of employment.
I requested to come back part time (one less day per week). It was refused on the basis that the role required I be at work 5 days per week.
They offered me another job role that I could do 4 days a week, which I accepted.
However, this other job (that I am still doing) was offered to me with a lower salary (as well as being pro rata).
I wasn’t sure if they were supposed to give me the same terms & conditions as before I left for maternity leave, and if this is supposed to include ‘same salary’ also?
I had a car allowance and understood that this was not part of the new job, so naturally this was removed, but they also lowered my salary in line with the lesser role (as the new job title did not pay as well)… Is this allowed?
Thanks for your help.
Editor: Our legal expert Sejal Raja says: The starting point is that after maternity leave an employee is generally entitled to return to work to the same job, on the same terms and conditions as if she had been absent. However, I understand that you made a request to return to work but on a part time basis, which was refused. Another role was offered which was part time and different to the role that you were undertaking prior to your maternity leave. Accordingly as this is a completely different role that you were undertaking prior to your maternity leave then the terms and conditions of that role can be different to the role that you were undertaking prior to maternity leave. Furthermore, the role was offered at your request rather than having been imposed on you. In the circumstances, the new role that has been offered, and which you accepted can be paid at a lower salary.