Should employees be given more rights on when and where they work in light of the Covid...read more
I’m currently taking additional maternity leave and I am due to return to work soon. I made a verbal request and started discussions around flexible working (reducing by one day and one day home working). This has not progressed at this stage and I have not made a written request. I received a call yesterday from my line manager informing me that my team are being relocated to a different town and that is where I will be based on my return. I have since discovered my team all received official letters last week, which I have not received. The new location will add significant travel time (are least 1.5 hours), travel costs and childcare costs to my working day. Not to mention the additional pressure this will add to my work life balance. I was initially positive about the changes, but am less so now I have fully digested the implications for myself and family. I would like to understand how much notice I should be given regarding a change of work location and whether these changes could be considered to be less favourable conditions?
To summarise: whilst on additional maternity leave you have been informed by letter that your employer has decided to move your normal workplace 11 miles away. This will impact significantly upon your travel time and childcare requirements. No other change has been made to your job and duties. Your employment contract contains a mobility clause, allowing the organisation to move your workplace but only after “reasonable consultation”. There has been no consultation other than the letter, which was issued to you a week after your colleagues in the office received it. Your primary concern is to ensure that you are no worse off than if you had returned to the location you worked at before maternity leave.
As an employee on maternity leave, there are specific legal protections afforded to you including the right not to be treated less favourably because you are on maternity leave. This means being consulted about matters going on in the workplace which affect you. Failure to do so will be discrimination. The fact that you have made a flexible working request does not change that.
You are entitled to return from maternity leave to the same job on the same terms and conditions as if you had not been absent or, if this is not reasonably practicable, to return to a different job which is both suitable for you and appropriate in the circumstances, and the terms of which are not less favourable than they would have been if you had not been off on maternity leave. If an employer fails to do so, it could be potentially discriminatory and automatically unfair if you resign and claim constructive dismissal). Or you could accept the role and still bring a claim for unlawful detriment and seek an award called ‘injury to feelings’.
In your case, although you would be returning to the same job title, duties and responsibilities, the new place of work arguably means you are not returning to the same job for legal purposes. Given the impact this change will have on your childcare needs, travel costs and travel time, it is unlikely to be a suitable alternative role either.
Although your contract contains a mobility clause, which means that when your employer changes your place of work it is not redundancy, your employment contract makes very clear that there must be reasonable consultation before any change in workplace. Your employer’s letter stating the decision has been made does not satisfy this contractual obligation and in addition, the employment tribunals have said that it will usually be unreasonable to exercise a mobility clause when a woman is returning from maternity leave. Enforcing the change in workplace now would arguably be a breach of contract and/or discriminatory by your employer. It is also likely that their failure to inform you about the change at the same time as your colleagues simply because you are out of the office on maternity leave will constitute discriminatory treatment.
You should now identify the resolution you want for example, do you want to relocate at all or would you be happy working from the new location for one day a week and from home for the rest of the time?
When you meet with the manager, set out your concerns. Explain that the change in workplace means you are not returning to the same job nor would you be returning to a suitable and appropriate alternative because of its impact upon your travel time, costs and childcare needs, all of which means the organisation is not meeting its legal obligations. Remind them the organisation has a contractual obligation to properly consult with such a change and their actions to date do not suffice. Say that as they are no longer carrying out the work in the place that you used to do it and as they have not properly exercised the mobility clause has there has been no consultation and it would be unreasonable for them to do so because you are returning from maternity leave, then this is a redundancy situation.
Explain you would be willing to consider alternative arrangements which suit both you and the organisation, then set out your suggestions.
If your employer refuses and says you must move to the new location, you must decide whether you are prepared to accept the change or resign. If you accept the change, then send a letter to the employer making clear you are doing this only under duress and setting out your concerns. Make a note of your conversation with the manager and keep any emails, letters etc. You should also consider taking legal advice regarding your options and the timeframes for bringing an employment tribunal claim.