Job advertised on maternity leave: ask the expert

I am currently on maternity leave which started at the end of September 2013 and planning to return to work in August 2014. I work on a fixed-term contract which expires in July and I have been employed in my current position since Oct 2012 and have worked for my employer since 2007. I have now found out they have advertised my position with a fixed term contract of up to a year. They have not advertised the position as maternity leave. Obviously if they do employ someone else then our positions would overlap so I can’t see them reinstating my position. I wondered if my contract is not renewed in July would I have to return for the 15 weeks stipulated in my maternity contract with regard to enhanced pay?

There is significant legal protection provided for you in these circumstances. Your employer cannot give your position to another candidate with a view to then allowing them to continue in your role, unless it is not reasonably practicable for you to return to your old job. Even then, you are entitled to return to a different job which is both suitable for you and appropriate in the circumstances. The terms and conditions must not be less favourable than they would have been had you not been absent on maternity leave. Employment law includes provisions to ensure that employers cannot unfairly disadvantage women as a direct result of their pregnancy or due to their taking of maternity leave.

If your employment has been continuous since you started in 2007, albeit on a series of back to back fixed term contracts, you have similar legal protection as your permanent colleagues. If you have been employed in consecutive fixed term contracts for four or more years you are normally automatically deemed to be a permanent employee. The non renewal of your fixed term contract during your maternity leave will be deemed as a dismissal.

If your employer has decided that your current role no longer exists, and can provide justifiable evidence to back this up, they will need to carry out a redundancy process and must offer you other suitable roles before other candidates. However, if upon returning following maternity leave to find that your employer has given your job to another candidate and does not renew your contract, you could have a claim both for sex discrimination and a claim for unfair dismissal.

Alternatively, you may have protection from unfair treatment due to your fixed term status.

I would advise having an open conversation with your employer with regards to the future plans for your role which will place you in a better position to take the appropriate action.

I would have to review your existing contract and your employer’s maternity policy in order to advise on the matter of the enhanced contractual redundancy leave as there may be contractual limitations meaning that you have to return to work in order to receive any enhanced benefit.





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