Fixed-term role advertised when I went on maternity leave: ask the expert

I have been working for the same employer through an agency for 20 months before going on maternity leave in August 2014. They said I would transfer to a fixed-term contract until March 2015 until they found out I was pregnant. They then said I could come back as a temp in March. Since then I have been told that my post will be advertised externally as my agency are no longer the main agency they use. It will also save them paying out money to an agency. However, another temp post which is the same role as mine is being extended as a temp contract. What I want to know is, as a contractor who has been in the post for a while, are they allowed to advertise my post rather than accepting me back into the role after maternity leave? I am getting statutory maternity leave and they are referring to my cover as ‘maternity cover’.

 

I understand that you worked for the same employer through an agency for 20 months before going on maternity leave in August 2014. I understand that you were told that you would transfer to a fixed term contract until March 2015 until your employer found out that you were pregnant. You were then told that you could come back as a temp in March, although you have now been informed that your post has been advertised externally. You asked whether your employer is allowed to advertise your role rather than accepting you back into the post after your maternity leave.

Your rights in this situation will depend on the nature of the relationship between you, the company you refer to as your ‘employer’ and the agency. I understand that you had been working for the ‘employer’ for 20 months before your maternity leave. However, it is not clear from your email how long you have been signed up to the agency. I understand that although your ‘employer’ does not want you back, you are still signed up to the agency. You would not have an unfair dismissal claim against your ‘employer’ in this situation because even if you were considered to be their employee (which is unlikely), you do not have the requisite continuity of service for an unfair dismissal claim, which is two years.

There is no obligation on the ‘employer’ to keep your post open for you. However, you may have a discrimination claim against the ‘employer’. This would be on the basis that you were told that you would transfer onto a fixed-term contract until the ‘employer’ found out that you were pregnant and also that another temp post, which is the same position as yours is being extended, whereas this was refused for you. You would need to show that the ‘employer’s’ reason for the difference in treatment was your pregnancy. Whether or not you are able to bring such a claim would again depend on the legal nature of your relationship with the ‘employer’ and whether you can claim that you were ‘in employment’ for the purposes of the discrimination legislation. I would need to examine this in detail with you in order to advise further. I would advise you to submit a grievance jointly to the ‘employer’ and the agency at this stage and you should note your dissatisfaction that your contract was not changed to a fixed-term contract and that it is not being extended, whereas a colleague’s, who has not gone on maternity leave, has been extended.

Any claim for pregnancy/maternity discrimination must be brought to an employment tribunal within three months of the discriminatory act, which, in your case, is likely to be the decision not to change your contract to a fixed term contract and also the decision to extend your colleague’s contract, but not yours. Please note that you must also go through the Acas pre-claim conciliation procedures before your claim to an employment tribunal will be accepted.

Please contact Tracey Guest on 0161 975 3823 if you would like further advice in relation to this matter.

Helen Frankland helped in the preparation of this answer.

 





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