Downgraded on maternity leave?

I understand that you recently returned to work after 52 weeks’ maternity leave and upon your return you found that you had a new manager (and thus a new reporting line), have less seniority and less responsibility and had been downgraded from grade A to grade B.  Although your job title has remained the same and your pay has increased, you are concerned that your responsibilities have been reduced to make room for the new manager.

Where an employee has taken any period of Additional Maternity Leave (“AML”)– i.e. more than 26 weeks’ Ordinary Maternity Leave and there is some reason (other than redundancy) why it is not reasonably practicable for the employer to permit her to return to the same job (for example, if there has been a reorganisation) then –

• The employee is entitled to return to a different job which is both suitable for her and appropriate in the circumstances; and
• The terms and conditions must not be less favourable than they would have been had she not been absent (regulation 18A(1)(b)).

Although employers sometimes assume that an employee who has taken AML automatically loses the right to her old job and is only entitled to return a suitable alternative job, this is not the case.

In short, your employer must be able to show that it was not reasonably practicable to permit you to return to your old job.  There is little case law on the subject, but the general position is that, while a genuine business reorganisation might be sufficient to justify not giving an employee her old job back, a simple preference for someone else to perform the role would not. It should also be remembered that bumping an employee out of her role in favour of a maternity replacement may also amount to discrimination on grounds of maternity.

Where it is not reasonably practicable to permit her to return to the same job after AML, if the employer does not offer the employee a suitable alternative job, the employer will be at risk of a claim of pregnancy and maternity discrimination and automatic unfair dismissal (if there is a dismissal) and/or unlawful detriment (if there is no dismissal).

In your case, although you have ostensibly returned to your old job, and indeed have had a pay rise, you may consider that the reality is different and you have fewer responsibilities and duties and that this may affect your future prospects.  On this basis you may feel that you have not been given a suitable alternative to your old job.

We would suggest that initially you may wish to discuss your concerns informally with the head of department under the guise of a back to work meeting and try to obtain a better understanding of (1) the thought process behind the recruitment of a new manager and whether you were considered for this role, (2) what the appointment of the new manager means for your role and prospects and (3) whether there is any scope for a return to the duties and responsibilities you had before you went on maternity leave and if not, why not.  You may wish to express your disappointment that you do not appear to have been consulted or considered in the recruitment of a new manager taking over a lot of your duties and/or state that you do not feel that the role you are now performing is a suitable alternative.  You should be clear why it is not a suitable alternative in your view and consider whether you have any suggestion for an alternative to the role you are currently performing.

You may also wish to consider raising a grievance if it appears that you may have been bumped in favour of the new senior manager.  It may be that you have a claim for unlawful detriment on the grounds of sex and/or maternity if your role is not a suitable alternative to your old job.

I would advise you to take further advice if the above approach does not achieve your desired outcome.

*Lucy Flynn assisted with this answer.

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