My employer has recently merged with another. Everyone is in the process of meeting with area managers so they can go through the changes of contract. I am currently on maternity leave and was asked to go in for a meeting: the two choices that were given to me were to stay on same pay but to work days, nights and weekends and increase my hours from 21 to 30 working four days rather than three. Other option was to drop a grade but still be on the same wage, still work three days but to work days nights and weekends. I had a informal working agreement 5.5 years ago when I went back to work after my first child. After two years I was told by my old boss I had to apply for a formal agreement which I did and this was accepted. This was for daytime hours during the week. I am due to return from one year’s maternity leave with my second child and they have given me slightly different hours as the shop trading hours have changed. I am not bothered about the difference, but I have been told my flexible working agreement will only last until the end of the month when all contracts will be changed. I have been told that I can reapply for flexible working, but that this may not be agreed. Due to this merger can the new merged company just delete my flexible working agreement as I have no childcare for the weekends? Can I also ask for redundancy if I do not want to change my hours?
I understand that the company you work for has recently undergone a restructure having merged with another company.
After your first maternity leave, five and half years ago, you submitted a flexible working request and your working arrangements changed. These have become your set contractual hours. You are currently on maternity leave and are due to return to work after one year.
Further to the company merger, you attended a meeting with the area managers to discuss changes to your employment contract which will take effect on 1 October 2017. You have been given two options as follows : –
1) You will remain on the same pay, working days, nights and weekends with increased hours from 21 to 30 over four days instead of three, or
2) You will drop a grade but remain on the same pay working three days. However, you will have to work days, nights and weekends.
You have also been informed that your formal working agreement will only last until the end of the month as after this date all contracts will change to meet the change in trading hours. You have been told that you can reapply for flexible working. However, there is no guarantee it would be accepted as all future flexible working agreements would need to agree with their ‘core rota’ which is every manager being required to work days, nights and weekends.
Generally speaking, when you return from additional maternity leave you have the right to return to the same job that you were doing before you left unless this is not reasonably practicable (for a reason other than redundancy), in which case, you have the right to return on terms and conditions no less favourable than those which would have applied had you not been absent. You would be able to argue that the fundamental change to your terms and conditions (in terms of hours) without your consent is breach of contract and maternity/sex discrimination and you could potentially have a claim for constructive unfair dismissal if you resigned in response to your employer’s treatment of you (NB I would not advise you to resign without first taking specific legal advice). Any claim for pregnancy/sex discrimination must be brought within three months of the discriminatory act and you must go through the Acas pre-conciliation process before you can submit a claim.
Please note that your rights are slightly different if there is a redundancy situation and your employer may well successfully argue that this is a redundancy situation. In this case, you are entitled to be offered a suitable alternative vacancy (where one is available) to start immediately after your existing contract ends. You would, of course, argue that the job on the revised hours that has been offered to you is not a suitable alternative for you. I would need further information from you in order to advise you on whether a redundancy situation exists and your associated rights.
Furthermore, your terms and conditions of employment would also be protected if the business sale you describe are covered by the TUPE Regulations (as is likely to be the case). Any changes where the sole or principal reason is the transfer will be void. However, changes will not be void where the sole or principal reason for the variation is an “ETO” reason, which your employer may be able to successfully argue in your case. As TUPE is such a complex area I would need further information from you to be able to advise in detail. If you do want us to review your position further for you, please contact Tracey Guest on 0161 672 1425.
*Helen Frankland has assisted in this answer.