You have enquired as to whether you are entitled to SMP if your contract is not renewed. ...read more
My wife held a position in a local authority before beginning her maternity leave. Three months after the birth of our child, she became aware of a new role which had substantially more responsibility and, as a result, was a significant rise in pay scale. The job description was one that she felt she met, with a large amount of the profile including the driving forward of work she had already done prior to maternity leave commencing. She enquired about the role, and mentioned throughout that she was not returning to work for another 10 months. Despite this, she was advised to apply verbally, but in writing reiterated she would not be able to begin until 10 months later. She was successful, but was told she had to start in five months. She offered to return two months earlier than planned, but this was deemed to be not suitable. She had no choice but to turn the offer down, but asked that, should the position not be filled for the start date needed, she be considered for the role. In the months that followed, she asked to utilise her keep in touch days for training, so that she was not behind on policy and procedures that had changed whilst away, but had no reply so she missed the training opportunities. In an attempt to retain staff, applications have been invited for others to ‘act up’ in a more senior role. This was offered to all staff, although my wife has not heard anything of this and found out, by chance, through a colleague who has gone through this process that has since ended. The role she was asked to come back from maternity leave early for has, at the time of writing, still not been filled and, when my wife contacted them to discuss her going into this role as a result, was told the job description was likely to change, but she would be welcome to apply again. But for the fact she was on maternity leave, she would have a job with more responsibility. She has been, it feels, forgotten about by her manager despite her chasing up for training, and is now reluctant to go back to work for an employer who clearly doesn’t care about her career progression. An ‘informal’ discussion with her HR department has taken place where they deny formally offering her the role (they deemed an email asking her to consider starting earlier to take the position was not a formal offer?) and stating she can take part in the ‘acting up’ application when she returns to work.
I note that your wife was on maternity leave and had applied for a new job with the same employer. She was verbally advised to apply and had consistently made her employer aware that she would not be returning from maternity leave for a further 10 months. Your wife was then told that she had been successful with her job application but that she would have to return after five months as the role would need to be filled for business reasons. You note that your wife had to turn down the role and also state that this vacancy remains open even now that your wife has returned to work.
Failure to be given job
Pregnancy and maternity is identified as a protected characteristic in section 4 of the Equality Act 2010. Under this Act, it is unlawful for an employer to discriminate by treating a woman unfavourably during her protected period (from the beginning of pregnancy to the end of maternity leave) because of her pregnancy. Unfavourable treatment can take the form of denial of promotion opportunities. Therefore your wife may have grounds to claim for pregnancy/maternity discrimination if she can show that she was rejected for the job because she did not want to bring her maternity leave to an end earlier than she was entitled to. The consequences of her pregnancy for the employer, financial or otherwise, are irrelevant in considering whether there has been pregnancy/maternity discrimination.
Your wife’s employer cannot require an employee not to be pregnant or on maternity leave in order to be able to do a job. The European Court of Justice (ECJ) held that to do so was discriminatory. In the relevant case before the ECJ, a pregnant job applicant was refused a job in compliance with German health and safety legislation (which expressly prohibited the work in question being undertaken by pregnant employees). The ECJ held that the reason that the applicant was denied the job was her pregnancy and not merely safety. It held that, if necessary, an employer should take on another employee on a temporary basis to cover the employee’s post during her pregnancy. It also commented that any financial loss suffered by the employer could not justify the discrimination. Similarly, in the Employment Tribunal, it has been held that the ‘considerable inconvenience’ of keeping a woman’s job open whilst she had a baby ‘is the price that has to be paid as part of the social and legal recognition of the equal status of women in the workplace’. Therefore if your wife can show that she was formally offered the job and that this was taken off of her due to her maternity leave then she may have grounds to claim for pregnancy/maternity discrimination.
Keeping in Touch days and reasonable contact
I note that your wife wished to undertake Keeping in Touch days (KIT days) whilst she was on maternity leave but that her manager never got back to her to approve/reject her request. I also note that your wife has found out that staff have been offered the opportunity to ‘act up’ in to more senior roles yet your wife was not given the opportunity to apply. In essence, KIT days must be agreed between your wife and her employer yet the employer has failed to respond to these. Your wife’s employer is also under a duty to inform your wife of promotion opportunities and any other information relating to her job whilst she is on maternity leave. A failure to do so can give rise to claims for unlawful detriment and pregnancy/maternity discrimination.
Time limits and next steps
Any claim for discrimination has to be brought within three months of the discriminatory act. It may be the case that your wife is out of time to pursue some of her claims unless she can show that her employer’s behaviour towards her constituted continuing acts of discrimination. Your wife would also need to go through the Acas pre-conciliation procedures before her claim would be accepted by an employment tribunal.
In light of the above I would strongly suggest that she seek further independent legal advice as soon as is possible. She may also wish to raise a formal grievance against her employer regarding the way that she has been treated.
If you would like further guidance regarding the points discussed above then please contact Tracey Guest of Slater Heelis LLP on 0161 672 1425.
*Helen Frankland assisted in answering this question.