Job changed while on maternity leave: ask the expert

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.”




Comments [13]

  • Lou says:

    What is the best way to handle returning after 9 months aml to the same role but my mat cover has created a role for herself in another department that overlaps part of mine but with a larger remit? I’ve brought it to my bosses attention and he’s facilitated a meeting to discuss roles and responsibilities and we’ve agreed to trial for a month and see how it goes. I was never informed of any of this formally prior to my return. The problem is I’m having to already assert myself with other colleagues who keep including her in issues that are within my remit and always have been. Her new job title is even remarkably similar to mine and causes confusion. I feel belittled by her during conversations and margianalised. My boss only sees it as a positive that 2 ppl are on the case rather than one. I don’t want to burn bridges but i also think this constitutes discrimination for me having been on maternity.

    • Mandy Garner says:

      Hi, After AML, you have a right to return to the same job if it still exists. Have you returned full time and is the job the same as before? If anything has changed, you should have been consulted and your agreement obtained. If it is more that your job is the same on paper, but the maternity cover’s role is impacting on your job,the best thing to do is to keep a record of that, eg, are you losing work as a result? Are you being bypassed in decision-making etc? You could then bring that up with your manager and say that it is causing conflict. It’s a good idea to think of ways that any conflict can be lessened.

  • May says:

    I am due to return to work at the end of December from maternity leave but have just been told my role is being expanded and I will have greater responsibility and in turn more to do upon my return. With a baby and small child I feel this will be too much but there are no other options and no flexibility.
    Do I have any other options?

  • daniel lerose says:

    What is a reasonable timeline to add new responsibilities to a returning Mom? These would be the same job function, but 1 or 2 days a month of travel.

  • Claire Harris says:

    Hi Alan,
    I have a similar situation to this, do you have an email address I can email details to? Redundancies in the department, half my job description has changed to almost a junior level and I’ve had no consultation.
    Thank you,
    Claire

      • Nicole Gee says:

        Hi I wondered if someone could help me, before I went on Maternity leave I was joint manager. While I was of on maternity the lady I did joint manger with left, they now have someone else in doing the manager role by them self. I would like to return back to work and I am more than happy to do the managers role by myself and be they allowed to refuse that.

        • Mandy Garner says:

          Hi, You have the right to return to your previous job after the first six months of maternity leave. After additional maternity leave [6-12 months] you have the right to return to your previous job or a suitable alternative [similar terms and conditions] if that job does not exist, eg, it has been made redundant. They cannot simply give it to another person.

  • Zo says:

    Can you help me I going back to work in September and my company want to change my job role a few days from office to shop floor can there do this ??

    • Mandy Garner says:

      Hi Zo,
      Can you provide a bit more information on how long you have been off [is it on maternity leave] and whether there is any clause in your contract which may allow this change of location and duties?


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