Job changed after maternity leave

I am an education manager and have been in post for nearly two years. I am on maternity leave and have asked for flexible working.  At a recent meeting I was told my request would be sent to governors. I was then told by someone that it had been decided that I would be doing much more teaching. I feel that on my return my job role is significantly different to the one I left before maternity. Now it seems I have almost got two full- time jobs. It seems from that conversation that a decision was made about my flexible working before it had even been sent to governors. Where do I stand?

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In giving this response, it is important to remember that currently the school has not actually stated the teaching requirements you outline that you heard about. Your question makes clear this possible arrangement has not been confirmed or discussed further with you.

When returning from maternity leave, employees are entitled to return to the job they were employed in before maternity leave unless it is not reasonably practicable to do so. If it is not reasonably practicable to return to their job, then the employer must provide another job which is suitable and appropriate for the employee in the circumstances.

In your case, you were employed as a manager and will be returning to that same role when maternity leave ends. Technically at least, you are returning to the same role. However, it is less clear as to whether your substantive tasks are changing, namely, the extent of your teaching duties. Prior to maternity leave you did perform some limited teaching duties and that is not unusual for your role. What is unclear is whether your contract specifies a minimum or maximum amount of teaching duties, and whether the school’s proposal (if implemented) would be a substantive change to your duties and therefore, whether arguably you are not returning to the same job.

You need to identify whether your employment contract sets any limit on teaching duties and/or a
minimum amount of time allocated to your management duties, and whether there was any agreement (explicit or otherwise) that you would take on class responsibilities as and when required. If for example, your contract sets an upper limit of teaching which chimes with the number of days being proposed, then it does not appear there would be any significant change to your job, meaning that you are returning to the same role and that there is no substantial change to your contractual terms.

If the contract is more generic though the situation is less clear cut. Typically, contracts will say that an employee must carry out additional duties (such as teaching here) as and when required by their employer. As an employee, you could argue that the parties understood from the outset that teaching duties would be limited, which is reflected in the arrangements for teaching prior to maternity leave and that changing those arrangements to teaching more than 50% of the working time would be a significant change requiring consultation with you and your agreement.

If the situation cannot be resolved or revised employment terms are not agreed, an employer can, after consultation, dismiss an employee and offer them re-engagement on the revised terms. The latter approach is sometimes called “fire and re-hire” and is a potentially fair dismissal. If the decision to dismiss is because of maternity leave, the decision could potentially be discriminatory and unlawful.

If a substantive change is imposed on an employee without their agreement, this would be a breach of contract, giving the employee a potential right to resign and claim constructive dismissal.

In respect of the flexible working request, if your application was made on or after 6th April 2024, then the new regime will apply. This simply means the school must deal with your request in a reasonable manner and within two months and must consult with you before making their decision if they are not minded to agree to the request. There is no legal right to have a companion at the meeting, although it is sensible to check if the internal school policy says otherwise, and you could, of course, ask the school if you can bring a union representative or fellow worker with you to future meetings as support and/or to make notes.

Whilst understandably, you are concerned the flexible working request’s outcome has been predetermined, this is not necessarily the case. The governors will still need to give proper consideration to your request and either accept it, suggest an alternative or reject it. If they reject the request, there are limited reasons upon which they can rely, and the school will need to set out clearly the reason for the rejection. Those reasons are one or more of the following: the burden of additional costs, detrimental effect on ability to meet ‘customer’ demand, inability to re-organise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work, and/or planned structural changes.

You will still have the right to appeal that decision and if it is rejected, to make a further flexible working request as the new regime permits employees to make two requests annually.

If you are a member of a union, you may find it useful to speak with the union and ask them to attend any meetings with you. They may also be able to assist you with ascertaining the contractual duties you owe the school, assessing whether any proposed change to your teaching duties would be a significant change to your contractual terms, and challenging any such attempt.

At the moment, nothing has been decided or agreed regarding either your teaching duties or the flexible working request. If the school imposes a significant change to your duties, you should raise your concerns with them as a formal grievance. If that does not result in a resolution, you should consider taking legal advice about the situation and how best to protect yourself.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon.

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