Have I been discriminated against on the basis of maternity leave?

I am currently on maternity leave and have applied for a promotion. I was told I was unsuccessful, that my interview was flawless but the successful candidate worked full time, although they had less experience. I don’t return to work until next year. At no point did the job post stipulate it was full time and my manager is aware of my working hours. The manager who did feedback made a point of saying that it wasn’t to do with me being on maternity leave which seems a bit of a strange thing to say as that should obviously be irrelevant. Have I been discriminated against on the basis of maternity leave?

Maternity Notice letter

Close-up Of A Woman's Hand Filling Maternity Leave Form Holding Pen Over Desk

Employees are protected from less favourable treatment if the reason for that behaviour is because they are on maternity leave. In addition, part-time workers are also protected from being treated less favourably than a comparable full-time worker would be treated.

Female employees will often work part-time hours because of childcare commitments and if a business insists that they work full time then this can be indirect discrimination because the courts recognise that the majority of childcare is performed by women and asking them to work full-time means that the employer is imposing a condition where the majority of people who cannot comply are women, However, the employer may be able to show that insisting on full time is a proportionate means of achieving a legitimate business aim – although this may be more difficult if the original job advert did not say this.

In this case, your manager has explicitly stated that the reason you were unsuccessful in your promotion was because you work part time. They have not given you an opportunity to consider job sharing the role, increasing your hours or working the required hours albeit in a different format such as compressed hours. Their failure to do this points to there being another reason – for instance, that you are not available because of your maternity leave. Provided the successful candidate was doing the same or broadly similar work as you, or has a similar level of qualification, skills and experience, then they will be a comparable full-time worker for these purposes.

If the decision was made on the basis of your maternity leave then this is also direct discrimination on the grounds of your maternity leave and your employer has no defence to this. However, getting evidence of this is more difficult. You can also say that insisting that this is a full-time role is potential indirect sex discrimination, especially as the advert made no reference to it being full time.

I recommend that you raise your concerns around the recruitment and selection process formally as a grievance with your employer and ask them to revisit the decision. Ask to see the notes of the interviews and submit a subject access request asking to see all personal data relating to your promotion.

Even if they are not willing to reverse the appointment of your colleague, by raising the issue and your concerns that the appointment is less favourable treatment because you are a part-time worker and/or because of your sex and maternity leave status, they may be able to look for alternative jobs which would be a promotion to you.

If this is unsuccessful, you should take legal advice. Bear in mind that you can remain employed by the organisation whilst bringing a claim for discrimination or less favourable treatment on the grounds of your part-time status and if the organisation treats you less favourably because you raised it, then this is victimisation which is a stand-alone claim of discrimination.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon. 

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