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Job no longer exists: ask the expert
I am due to return to work after Additional Maternity Leave and have been told that my old job ‘no longer exists’. I have been having discussion for 2 months about possible suitable alternatives, and while roles have generically been discussed, no formal job descriptions have been provided or made to me in writing. I have now received a job description for a role and told that it is ‘equivalent’ to my old role. My old manager is unable to provide me with any details of the role, including simple basics such as where it is based. They have also been unable to confirm whether the role is on the same Terms and Conditions, Salary, and Benefits as my previous role. This was provided to me on e-mail just 1.5 days before my planned return to work. I am a mum of twin boys and have reasonably tried to be flexible and open about what role I could take on, but now find myself in a position where I am potentially returning to a role which has never previously been discussed with me, where there has been no assessment of my Flexible Working request, and they cannot even specify location. Given that, in my view, my employer has failed to provide me with any details of a new role in a reasonably timely manner, I feel I have little alternative but to leave. I have 7 years’ service and feel very poorly treated.
Is there a case for a tribunal claim given the way my employer has acted in providing me so little information so late in the process, leaving me with, I feel, no option but to resign?
Employees who take additional maternity leave (“AML”) are generally entitled to return to the same job, on the same terms and conditions as if they had not been absent. However, where an employee has taken any period of AML and there is some reason (other than redundancy) why it is not reasonably practicable for the employer to permit her to return to the same job (for example, if there has been a reorganisation), the employer has more flexibility.
In such circumstances an employee can be offered a different job which is both suitable for her and appropriate in the circumstances provided that the terms and conditions are not be less favourable than they would have been had she not been absent.
Many employers assume that an employee who has taken AML automatically loses the right to return to her old job and is only entitled to return to a suitable alternative job. However, this is simply not the case.
An employer must show that it is not reasonably practicable to permit her to return to her old job. Employers should expect that any decision not to allow a returning employee back to their old role will come under close scrutiny by an Employment Tribunal, should this be challenged by an employee. What explanation has your employer provided as to why your old job “no longer exists”? If the explanation is flimsy, then you may well have a claim for pregnancy and maternity discrimination and automatic unfair dismissal.
I agree that your employer appears to have acted unreasonably in failing to engage in proper consultation with you about the proposed new role (by failing to provide sufficient information about the role in a timely fashion). This could also form the basis for a claim for pregnancy/maternity discrimination or indeed constructive unfair dismissal.
I note that you also indicate that your employers have failed to properly to deal with a Flexible Working Request. There is a strict procedure for both employees and employers to follow concerning Flexible Working Requests. An employer can only refuse such a request on one of the following grounds:
– The burden on the business of any additional costs incurred
– Detrimental effect on its ability to meet customer demand as a result
– The inability to recruit additional staff
– The detrimental impact on the quality of the business as a result
– The insufficiency of work during the periods that the employee proposes to work
– Planned structural changes
Furthermore, if an employer cannot objectively justify their refusal of a flexible working request then this could form the basis of an indirect sex discrimination claim.
If you are unable to reach a reasonable solution with your employer, I would recommend that you seek specialist legal advice before taking your next step. You would need to give much more information about the discussions you have had with your employer before a solicitor could advise you properly on your position.
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