You have enquired as to whether you are entitled to SMP if your contract is not renewed. ...read more
I’ve been working for the same company for several years and I reduced my hours after maternity leave and went on job share, working Monday to Wednesday.This worked well. Then she went on maternity leave and a temp covered for her. When the original job share came back they allowed her to work the same days as me rather than the Thursday and Friday. I think they thought the temp would stay on and do the Thursday and Friday, but she didn’t. A manager covered Thursday and Friday and the two of us on the job share covered if he was off. Then part of my work was taken off me and I was told I wouldn’t need to provide cover on extra days. However, a new manager came in and yet again they wanted me to cover the Thursday and Friday and this time they didn’t ask my job share who used to do those days. However, one Friday I had a childcare issue so I said I couldn’t cover that one day. I emailed the manager and months later found a letter pinned to my payslip telling me that part of the reason they allowed me to job share was to provide cover. I am annoyed by the way this has been handled and because I am expected to cover this other manager’s job despite the fact it is not a role I normally do and when my job share who used to cover these two days is not asked.
I understand that you were originally employed on a job share arrangement. However, when your job share partner returned from maternity leave, she was allowed to work the same days as you, meaning that there was nobody to cover Thursdays and Fridays. I understand that in January 2016 your manager then took over the work on Thursdays and Fridays. You were asked to cover one day and your original job share partner was asked to cover the other day. In April 2016, some of your role responsibilities were taken off you and you were informed that you no longer needed to provide cover on extra days. In June 2016, a new manager started and you were again asked to cover Thursdays and Fridays. On one day in November however, you were unable to cover a Friday when you were required due to childcare commitments. You have since found a letter stating that you still need to provide cover on the Thursdays and Fridays. You have only just discovered this letter although I understand it was written some months ago.
Due to several changes over the past few years, there appears to be some confusion as to your job duties/hours and what you are expected to cover. Your terms and conditions of employment can be agreed orally or in writing or a mixture of the two. They can also evolve over time and they can become your fixed, agreed terms and conditions by virtue of the fact that this is the way the contract has been performed (without objection) over a period of time. It does appear that your employer would have an argument that you agreed to cover your new manager on Thursdays and Fridays and have done so since June 2016. By custom and practice, this is the contractual arrangement that has therefore been agreed. However, you need to consider the detail of what has actually been agreed. For example, did you agree to provide cover as and when possible for you? Or every single Thursday and Friday when you are required? Are you able to refuse this additional work without adverse consequence?
If you have always worked every Thursday and Friday as required, it does appear that your employer would have an argument that this has become your fixed contractual arrangement (subject to anything agreed between you to the contrary). Even if this is the case, however, it would seem unfair that your employer should penalise you for not being able to work on one single day out of six years. You would, of course, have had the option to take a day’s dependents’ leave (unpaid) due to the circumstances of you being unable to work when you were required and you could argue that your employer’s treatment of you constitutes unlawful sex discrimination.
I think you would benefit from some clarity in relation to the cover that you are providing. The best was to move this forward would be for you to request a meeting with HR to discuss what you/they think your current arrangement involves. If this does not resolve the matter, you should submit a formal grievance about the way this matter has been handled and specifically in relation to the fact that you appear to have been penalised for taking a day off work for childcare reasons. If this doesn’t resolve matters, I would suggest that you take further specific legal advice in relation to possible next steps and specifically a potential sex discrimination claim.
Please be aware that any claim for sex discrimination must be submitted in a tribunal within three months of the discriminatory act and that you need to go through the Acas pre-conciliation process before a claim would be accepted by the tribunal.
Should you require any further advice, please contact Tracey Guest on 0161 672 1425.
*Helen Frankland assisted in answering this question.