A quarter of pregnant women have faced discrimination at work during the coronavirus...read more
I am currently due to return to work next month after a year off from maternity leave. During this time my team has been restructured and increased in size/jobs. My employer has offered me a role, but this role was previously done by a junior in the team. They have increased the level and salary of the offered role to show that this role is in theory suitable. My actual role has been split into two roles: role one which is 60/70% of what I was previously doing has been moved to a level up from my current role and as such not offered to me. Role two which is 30/40% of my role is at the same level, but the job description has been written in such a way that it exactly matches the profile of my maternity cover. Am I entitled to argue that the role I have been offered is not suitable (5% of what I have previously done) and that I should be offered one of the other posts without having to interview for them?
Unfortunately, your situation is not uncommon. However, the law does afford employees on ordinary maternity leave legal protection and rights to return to the same job, or one that is no less favourable, than the position covered before maternity leave was taken.
As you will be returning from additional rather than ordinary maternity leave, and there has been a reorganisation in the meantime, it appears that it is not reasonably practical for you to return to the exact same job given that your employer has now split this into two positions and the original team has been expanded to meet with business needs.
What you are legally entitled to is the right to return to a role which has terms and conditions that are no less favourable than your previous job. While you state that the position offered to you had previously been carried out by a more junior member of the team, your employer has increased both the level and salary and therefore you will be on improved terms and conditions (this is based on the assumption that the increase is based on your original salary rather than an increase in the previous pay level for the role offered).
However, you state that the new job description is at a junior level and presumably that means it includes more menial tasks than your previous post. You also state that you believe that the second role, made up of 30 – 40% of your original job, may be offered to your maternity cover and has not been offered to you.
As your employer has changed your job to include work which is less favourable than your original post, and it seems your employer is also likely to give aspects of your original position to the candidate covering your maternity leave.This could potentially be unlawful based on the information you have provided.
A preference for an employee employed on maternity cover to perform your role (or certain parts of your job) is unlikely to be sufficient justification to change your existing position. It is also likely that giving important parts of your original job to the candidate covering your maternity leave may constitute unlawful discrimination on the grounds of maternity.
I would also comment that if your employer has embarked upon a restructuring exercise affecting your position whilst you have been on maternity leave and yet have failed to properly inform and consult with you concerning that restructure, or indeed failed to offer you the opportunity to apply for the other role, then this in itself may be unlawful discrimination.
Employment law provides considerable protection for women both during pregnancy and thereafter and your employer cannot discriminate against you as a result of your pregnancy or taking maternity leave. In order to defend a discrimination claim, your employer would have to prove that their decision to change your remit to include more menial tasks was not linked in any way to your being on maternity leave.
If your employer does not allow you to return to the same job or you are not offered a suitable alternative i.e. the position which now comprises 30 – 40% of your original job, you have a potential claim for pregnancy and maternity discrimination, automatic unfair dismissal (if this can’t be addressed), or unlawful detriment.
It is difficult to fully advise you without sight of the letters from your employer regarding proposed changes to the position you’ll be returning to and both your original and proposed job descriptions. Please don’t hesitate to contact me with the above documentation so I can more fully advise of your position before you speak to your employer to address this.”