I saw my job advertised while I was on maternity leave

I understand that you have just reached nine months off on maternity leave and have decided to extend your leave to a full year. In July or August you saw a job advertised that was the same job description as yours and managing your team, but under a different title. Your director confirmed that they couldn’t expect customers to wait a full year when you spoke to him and you are now worried as it is a small company and you are aware there is not enough work for two people. When you discussed extending your leave with your manager you were informed that you would have to return full time as there are no part-time jobs in the company.

In relation to which job you should return to, as you have taken Additional maternity Leave (longer than 26 weeks) you have the right to return to the same job unless your employer can prove is it not reasonably practicable. In these circumstances your employer has more flexibility but must still offer you an appropriate and suitable alternative on terms and conditions that are no less favourable than your previous job.

I understand that your employer has hired a maternity leave replacement for you and have made them permanent. This alone would probably not demonstrate that it is not reasonably practicable to give you your old job back. A simple preference for someone else to perform your role would not suffice and your employer should still consider whether you should be offered your old job. Moving you into an alternate role in favour of your maternity replacement could amount to discrimination on the grounds of maternity.

If you cannot return to the same job after taking Additional Maternity Leave and your employer does not offer you a suitable alternative job on no less favourable terms and conditions, you may have a claim of pregnancy and/or maternity-related discrimination, automatic unfair dismissal (if there is a dismissal), and/or unlawful detriment (if there is no dismissal).

If your employer offers you a role which is not suitable (i.e. on terms less favourable than the job you were employed in), then you can refuse to accept it and treat yourself as constructively dismissed (assuming there is no express dismissal). This would enable you to bring a complaint of unfair dismissal. Even if you accepted an unsuitable offer, you could still bring a complaint of unlawful detriment and/or pregnancy/maternity-related discrimination if the change in job or terms was because of your pregnancy or maternity leave.

You have mentioned a potential redundancy, if you are selected for redundancy for any reason related to your pregnancy or maternity leave, you would have an automatically unfair dismissal claim. This would also constitute unlawful discrimination. You would also be likely to have a claim for unlawful discrimination if your employer did not properly consult with you during a redundancy procedure. If you are identified as ‘at risk’ of redundancy whilst on maternity leave your employer should adjust the selection criteria or procedure to ensure that you are not put at a disadvantage.

As long as you have 26 weeks’ service you have the right to request flexible working, if you wish to return to work part time. Your employer can refuse this, but should think carefully before doing so. They must consider your needs and whether your work can be organised in a different way so that the business can still achieve its goals. If they refuse your request it must be on the basis of a business reason.

Your employer must notify you of their decision within a three-month period, so you should make your request at least three months before your intended return to work date.

If you are refused part-time working or not allowed to change your working pattern, you may have grounds to bring a claim for indirect sex discrimination, whether or not the rules for consideration of a request for flexible working have been breached. In such a case, your employer would need to show that they had objective justification for the requirement for you to work full-time.

In some cases the refusal of a flexible working request may entitle you to resign and bring a claim for constructive unfair dismissal, but you should seek legal advice before giving up your employment.

I would therefore advise you to formally make a flexible working request in the first instance and see how the company deals with that process and if your initial request is rejected, appeal the decision. At that point the options open to you will become clearer.

If you wish to discuss this further or require more detailed advice please contact me directly ([email protected] / 0113 200 9784).