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Maternity cover being paid more than me: ask the expert
The lady covering my maternity leave has had her contract extended and the role has become a job share with me working 3 days a week, her technically working 2.5 days a week. She is being paid an additional £10k a year then me, whilst my salary was reduced due to working 3 days a week. I did approach the company requesting that my salary be reviewed to match what the maternity cover was paying and also to match market rates, but my request was declined leaving me in a state of limbo. Whilst I am searching for a new role, it is soul destroying to be in a role where someone is being paid more and I cannot believe that HR law allows this. The other issue that I have is that my notice period is 3 months and if I leave within 12 months, I have to repay my enhanced maternity benefit which is approx £2,000. With two young children, I am not in a position to leave without having another role to go into.
There are several potential claims which seem possible from your situation e.g. sex discrimination, equal pay, constructive unfair dismissal. However for an equal pay claim you need an actual male employee who you can say is paid more than you for equal work, work rated as equivalent or work of equal value. A female comparator will not be relevant and I can not therefore see that you have a claim for equal pay. For a direct sex discrimination claim you will need to show that you have been treated less favourably than a real or hypothetical comparator, who is a member of the opposite sex and whose circumstances are not materially different to yours. The fact that there is a female comparator on higher pay will not help you win any claim of sex discrimination. If however you believe that you are being paid less due to your pregnancy or maternity leave then you do not need a comparator. You would however need to find some evidence of this e.g. comments made by managers about your maternity leave resulting in lower pay. In the absence of any evidence, this will be a difficult argument to run.
The other option is to view the difference in pay and your employer’s refusal to address this as a fundamental breach of contract and to resign with immediate effect and bring a claim for constructive unfair dismissal. Your employer’s reasoning for the difference in pay would need to be unreasonable and you must take further legal advice before making the decision to resign. The best way forward would be to raise a written grievance about your pay and the fact that someone else doing the same job is paid significantly more. If the grievance is not resolved satisfactorily e.g. no good reason is given for the difference in pay and nothing is done to remedy the situation then you may be in a position to resign with immediate effect (but do take legal advice before resigning). If you take this route then you would argue that you do not need to re-pay the maternity pay because your employer breached your contract and made it impossible for you to stay (this would be subject to the terms of your contract and again you would need to take further legal advice on this point).
Sarah Calderwood assisted with this answer.
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