I’m on a fixed-term contract which ends soon. I’m covering for someone who was temporarily promoted. I’m currently on maternity leave and I have been informed that my fixed-term contract may not be extended post maternity leave due to funding issues even though the person I have been covering has been given a permanent promotion. I was told there is a strong chance that my fixed-term job will cease to exist although not confirmed. However, a permanent job for the same job is now being advertised. I found out that this job was first offered to another colleague who is also on a fixed-term contract but not on maternity leave. I was not offered the job instead I was informed by my manager that the job is being advertised externally and to apply if I’m interested. Have I been discriminated against?
Under the Equality Act you are protected from being treated less favourably by your employer where that treatment is because of your maternity leave or pregnancy. As one of your colleagues has been offered the new role, this gives you a potential argument that your employer has treated you less favourably than that colleague and that the reason for this may be due to your maternity leave. This is especially concerning where you have been acting in the same role on a fixed-term contract. This decision could therefore amount to discrimination.
I presume from the information that you have provided that you have worked for your employer for less than two years. If you have been working for your employer for at least two years continuously, which includes successive fixed-term contracts without a gap, then you may also have a claim for unfair dismissal if your current role ends. Allowing your fixed-term contract to end without offering you another contract amounts to a dismissal. Your employer is only allowed to dismiss you for a fair reason. Potentially fair reasons include capability or conduct issues, redundancy situations, where the employment contravenes a statutory restriction, or “some other substantial reason”. The latter requires the employer’s reason to be something which is of a kind that could justify dismissal. This can cover the ending of a fixed-term contract due to lack of funding. However, your employer would need to follow a fair process.
If a redundancy situation arises whilst you are on maternity leave you also have the right to be offered suitable alternative vacancies in preference to other candidates and this is therefore something your employer will need to consider.
You are also protected from less favourable treatment than a permanent employee under the Fixed-term Employees Regulations. This right extends, in particular, to an opportunity to secure a permanent position. As your colleague is also on a fixed-term contract, this regulation unfortunately wouldn’t apply, as it only protects you from less favourable treatment as compared to permanent employees. However, if you were to find that a permanent employee was offered the role, then you may be able to claim under the regulations. In the absence of this you would need to rely on discrimination or unfair dismissal above.
As a starting point I recommend you speak to your manager to ask why you were not approached and offered the role, but your colleague was, and why you need to apply instead alongside external candidates.
If they are unable to give a satisfactory explanation, you could then explain that you are concerned that you have not been offered the role because you are on maternity leave. If you are still not happy I would recommend you consider raising a grievance.
Raising your concerns would not prevent you from applying for the role at the same time if this issue is not resolved prior to the application deadline, which you could do alongside this.
If you are not ultimately offered the role and your employer then looks to end your fixed term contract I recommend that you seek further advice.
Good luck with the conversation, I hope your employer alters their decision and you are offered the permanent role.
*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton.