Having to reapply for my job: ask the expert

I am due to return to work next week after taking 39 weeks’ maternity leave. The company I was working for got taken over shortly before I left. I have not signed a new contract with the new company or anything yet. The role I left was a full time admin assistant role and I have had to reapply for that job as it was advertised internally and I’ve been told that if I don’t get it then I do have a job on sales when I go back. Can they do that and advertise the job which I was doing, meaning I’m not guaranteed the job which I left doing when I go back?

After maternity leave, you are entitled to return to work to the same job, on the same terms and conditions as if you had not been absent. However, there is one exception to this, which is where an employee is returning after additional maternity leave (which is the position with yourself) – if there is some reason (other than redundancy) why it is not reasonably practicable for your employer to permit you to return to the same job (for example, if there has been a reorganisation), the employer has more flexibility. In this situation, the employee is then entitled to return to a different job which is both suitable for her and appropriate in the circumstances, on terms and conditions no less favourable.

However, while a genuine business reorganisation might be sufficient for an employer to argue that an employee is not entitled to her old job, a simple preference for someone else to perform the role, is not sufficient.

I am not aware as to the reasons put forward by your employer as to why you have had to reapply for your job. However, it is likely that this treatment would amount to discrimination on grounds of maternity. You could also potentially have a claim for constructive unfair dismissal.

Furthermore, you have explained that this situation has arisen because the company you were working for was taken over shortly before you left. In this situation it is likely that the Transfer of Undertakings Regulations apply, which gives you further rights.

My advice therefore is that you should ask for a meeting with your employer to explain that you cannot understand the situation and that you have been advised that are entitled to return to your previous position and that if this is not done, you would have potential claims against the company in respect of discrimination on grounds of maternity/sex discrimination and potentially a claim for constructive unfair dismissal. You could set our a formal grievance in writing to your employer in this respect. However, you may decide that it is best for you to wait and see whether you are actually successful in your application for your original role, as it may be that you are given this position in any event.

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