I went on maternity leave and it was agreed I could spent it in Spain if I signed an Agreement for International Assignments that states that I would be responsible for my own tax and social security expenses whilst abroad. The agreement ends soon and I am returning to the UK after a year. However, changes to my original role have been made without consultation. My role’s responsibilities have changed, for instance. Because of all this change, I asked my employer to allow me to work permanently from Spain as it has other people who have moved country. My request has been declined. Are there options/routes other than resigning or being fired to resolve this work issue?
I have made some assumptions from the information you have provided: that you are employed on a permanent (as opposed to fixed-term) contract of employment and are an “employee” rather than a worker or self-employed. I have also assumed that you hold the necessary qualifying period of service for statutory maternity rights.
As you have taken more than 26 weeks’ maternity leave, you will be returning from ‘additional’ maternity leave, and therefore your statutory right is to return to work to the same job, on the same terms and conditions as if you had not been absent.
If a redundancy situation arose during your maternity leave and it was not practicable by reason of redundancy for your employer to continue to employ you under your existing contract, you are entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after your existing contract ends.
From the situation you’ve described, there does not appear to have been a redundancy situation, but instead an internal re-organisation. Therefore, your statutory right relates to your UK-based contract and would not entitle you to change your place of work to Spain, while your job remains available in the UK.
Because the changes affecting your role during maternity leave were not discussed with you, you might have grounds to complain that you have been treated unfavourably because you exercised the right to maternity leave and that this amounted to discrimination. In other words, had you not been absent at the time of the changes, their effect on you would have been fully discussed at the time and could foreseeably have resulted in the exercise of discretion as to the operation of the defined location strategy, given the precedent of moving people from one country to another. To resolve your complaint, you could use the grievance procedure to have your complaint investigated in order to consider whether you can be transferred to a Spanish contract as an exception to their standard defined location strategy to resolve your complaint.
Alternatively, you could consider submitting a statutory flexible working request, for a permanent change to your place of work with a permanent change to your employment contract. I can see you have already asked your employer to work permanently from Spain, and I have assumed that this was only an informal request. If this assumption is incorrect, bear in mind that only one statutory flexible working request may be made in any 12-month period.
The ACAS Guidance on flexible working provides some helpful pointers for the request itself and what to include. Make sure to obtain a copy of your employer’s flexible working policy and comply with any internal rules and protocols.
Your employer is under a statutory duty to deal with the request in a reasonable manner and make a decision within three months of the request. It may be refused on one of eight prescribed grounds. While there is no statutory right to appeal the decision, the ACAS Code on flexible working requests encourages an appeal to be permitted.
*Gemma Bailey is the Head of Howells’ Employment Department. Gemma advises individuals and companies on the full range of employment issues.