Job replaced while on maternity leave: ask the expert

I am a Senior Director in my organisation. When I left on maternity leave there was an interim cover appointed to the role who subsequently left. I have just found out that the company has hired a permanent replacement (man from outside the EU) to perform my role and I received no communication or consultation about this. This appointment was within my OML (first 26 weeks) and I contacted them immediately to ask them what role they had for me, but I am still waiting for a response. I am due back in March (I took 9 months maternity leave). Would I have a claim of maternity-related discrimination/ unlawful detriment or as I had indicated at the beginning of my maternity leave I was taking 9 months, has this negated that possibility? Also do I have to wait for them to offer me a role before taking further action?

You have a right to return to the same job if you return to work during the first 6 months of your maternity leave i.e. ordinary maternity leave. If you return to work during your additional maternity leave then you have the right to return to the same job unless it is not reasonably practicable to do so. The fact that a permanent replacement was employed during your ordinary maternity leave seems unfair given that you may have returned to work during that time. As you are now in your additional maternity leave period, your employer will have to justify why it is not reasonably practicable for you to return to your job. This is quite difficult for an employer to show and you need to write to them to ask whether you are returning to your original job, and if not, why not. You would then need to take further legal advice to establish whether their reasoning is sufficient to satisfy the test. If their reasoning is not good enough then you have a claim against your employer for sex discrimination and may also choose to resign and claim constructive unfair dismissal. Please take further advice before resigning.

If your employer can however justify their actions, then you are entitled to a different job which is suitable and appropriate for you in the circumstances and your new terms and conditions cannot be less favourable than your current terms.

You may find the following case helpful and can draw it to the attention of your employer:

In the case of Stelfox v Westco Building Components Ltd ET/15083/95, a temporary employee was engaged to provide maternity cover. He was excellent at his job and when the employee asked to be made permanent, his employer simply agreed. The Claimant was still on maternity leave at this time and she was offered a different job at the same rate of pay. The tribunal held that this was wrong; the employer had failed to show that it was not reasonably practicable for the Claimant to return to her old job, in fact the employer had not even thought about whether she should be offered her old job back, and had failed to consider any alternative for the temporary employee when he asked to made permanent.

In summary, write and ask for an explanation and if you are not offered your job back then take some further legal advice.

Comments [1]

  • says:

    I work for a care home. My contract states the hours are flexible to meet the needs of the service. I currently work 12 hour shifts followed by a sleep in shift Friday to Sunday. Which I am paid a one off payment for. The needs of the service users have changed and staff were advised that there will no longer be wake nights (paid as a hourly rate) in place from Monday through to Thursday and this will be replaced by a sleep-in. The one off payment will increase to a higher amount and the shift will be 13 hours followed by 11 hours to cover the extra hour worked the day before. The team have all been briefed in a meeting and informed that the service will be trailing the sleep-ins to look at risk identified and then the new shifts patterns will come into effect four week from the trail dates to give me notice of the changes. Although my employer have been generous, it means an increase in the amount of sleep-ins I will be doing over a month. Is there any legal way this can be challenged.

    Editor: Do you mean that the number of night shifts you will be doing will increase or is there a pay differential between wake nights and sleep-ins? 

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