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I really need some help and advice regarding my current employment. I have just started maternity leave soon. Just before I went on leave we were told that my employer would be restructuring its support staff and a document was sent out for all to look at and digest. Last year, I was diagnosed with a condition which is classified as a disability for employment purposes. I reduced my hours to three days a week and eventually a job share was arranged with each person doing three days a week, though we didn’t ask for an overlap day. I have now been told my role is a full-time one. A colleague is on maternity leave and her male maternity cover is being encouraged to apply for my and my job share’s job. They say I won’t get it because of my health problems and because I am going on maternity leave. My job share and I have said we are willing to reduce our hours to those of a full-time role, but we have been told that the job share is not working, despite no previous mention of this in the 10 months since we have been doing it. I’ve been told I have to reapply and go to an interview to fight for my job, but I’ll be on maternity. Can they do this? I just want to be able to return to my original position even if that means a reduction in hours to meet the business need.
I know this is a difficult situation, particularly as you have just started your maternity leave and this should be a happy and not a worrying time.
The starting point is that any organisation has the freedom to organise its workforce in the way that best suits its needs. However, they must not close their mind to other alternatives and must have good reason for discounting them. Otherwise a Tribunal might decide that the real reason for an employee’s dismissal is quite different to that stated.
A genuine redundancy situation arises where there is a reduced need for the type of work you do or a reduction in the number of people required to do it. Your manager has confirmed the role is still there, but they want it done by one and not two people and there would be technical arguments whether this was a redundancy or not. However, even if was not technically a redundancy, it could be classed as a ‘business reorganisation/restructure’ because your employer has said it still needs the post, but needs it done in a different way. Genuine restructures resulting in dismissal can be a potentially fair reason for dismissal as long as a fair process is followed.
Your male colleague has been encouraged to apply for the full-time role currently undertaken by two women and whilst it is not usually enough to say ‘a man has been offered my job, it is discrimination’ at the very least it might build up a picture of an organisation and the real reasons behind their decisions.
As a part-time worker you cannot be treated less favourably because of your part-time status when compared with others who are doing similar roles on a full-time basis. Therefore you cannot be discounted from consideration just because you are part time.
As well as having a fair reason for dismissal your employer must go through a fair consultation process. This requires your employer to look for ways of avoiding the proposed termination of the role, for example, reducing the hours you and your job share work. You should explore with your employer why they have discounted this, especially given the lack of feedback about the situation not working for the last 10 months. If your employer decides that this is not possible and this decision is a reasonable one, it will then need to identify whether any suitable available vacancies exist internally for you.
A “suitable available vacancy” is a role which your employer considers is suitable, appropriate and not substantially less favourable to you than your existing contract, based on its knowledge of your personal situation and work experience.
They do not need to discuss this assessment with you, but it is good practice to do so. Any such roles must be offered to you without competitive interview in preference over all other employees because you are on maternity leave and enjoy a special legal protection as a result. If a suitable available vacancy does not exist, your employer should still take active steps to find out about and tell you about any other vacancies within its own organisation and that of any associated employers, and give you the opportunity to apply and be interviewed for these roles.
You have a condition which is classified as a disability for employment purposes and your employers have assumed, without talking to you or taking up to date medical advice, that you will not be interested in the full-time job. It is important for them not to make assumptions but to talk to you about it. If you and your doctors do believe you are able to do the role full time and you want to do it, then apply for it, explaining that this is the case and ask them to take this into account. As you will be on maternity leave they should then give this role to you without competitive interview as a suitable available vacancy.
Practically speaking, I suggest you engage with the consultation process fully. It would be reasonable for your employer to meet you off site or permit you to attend meetings by telephone as you are on maternity leave. You should explain that they can achieve their desired goal (i.e. full-time cover) by reducing the hours you and your job share work. If your manager says that the job share cannot be accommodated any more, ask them to explain why given that no concerns have been raised since it was first proposed and since it has been operational for over 10 months.
If your employer will not agree to reduce your hours and you want the full-time role, explain that you believe it is a suitable available vacancy and they are legally required to offer that role to you in preference to all others because you are on maternity leave. If they disagree, ask them to set out in writing their reasoning, discuss it with them explaining why you believe it is suitable for you and apply for it. You could explain your concern that the decision has been predetermined given that your manager has already said you will not get the job because of your disability and your maternity leave, which is potentially direct discrimination.
You have to be sure that you want to do the role full time because if you unreasonably reject a suitable alternative role, you will not be entitled to a redundancy payment.
If you are dismissed on grounds of redundancy and/or restructuring, I suggest you take legal advice about your options as you may have claims against your employer and your manager personally for discrimination because of your disability, sex (as they are encouraging a male to apply for the job) and/or maternity leave, and less favourable treatment because you are a part-time worker.
On a final note, keep a record of comments by your employer and your manager regarding your suitability for the role including a retrospective note of the manager’s comments regarding your chances of getting the new job.