My employer may be trying to force me out: ask the expert

Please help! My problem is complicated and no one seems to know what I should do. I am currently on maternity leave and my SMP ends in 6 weeks. I was planning to take the rest of December and January unpaid and begin my accrued holidays in February then return after that. I recently called a meeting with my boss and told him in advance that at the meeting I wanted to discuss my plans for dates of return and reduced/flexible working hours due to lack of childcare. At the meeting my employer told me the company had encountered financial trouble whilst I’d been on leave and things were bad. I told him that I had a proposal which I thought he would be happy about – would he like me to work 2 days, which would help me and seriously save him money (it’s a small business and him being owner takes care of the banking etc.). He said he was sorry to tell me this but that would be unlikely and redundancy may be on the cards. He looked scared and said the bank had been ringing him demanding money! I was shocked and upset, but felt sorry for him and said I was sorry to hear that, but how likely is redundancy and should I start looking for another job? I then added that when I do return to work I’ll be saving him money in the meantime by only working 2 days a week. He then told me he may need me 5 days a week as business may have picked up by then! I said I didn’t think it would pick up that much in a couple of months and added that 5 days was impossible anyway. He then looked uncomfortable and said to phone him in 4-6 weeks when he would have a better idea of what was happening, but I said I needed to know where I stood so I could let my husband know. He just shrugged and said he’d have a better idea in about 6 weeks. Since then I’ve spoken to various people who think he’s trying to ‘constructively dismiss’ me. I am now angry and worried sick. If he makes me come back 5 days a week I will have to resign and will end up with no redundancy and, worse, won’t even be able to claim jobseekers allowance. I have since written to him to let him know in view of what he told me at the meeting I cannot afford to take any time unpaid and must return to work as soon as my SMP runs out. I have tried to phone him to check this is OK and to try and find out what he is intending to do next so I can plan ahead, but he is ignoring my calls. Also to completely throw a spanner in all that I think I may be pregnant again. What are my rights? Where do I go from here?

From the way your employer is acting, you could potentially have a claim for constructive dismissal – which means that you have no option but to resign, as a result of the way in which your employer has treated you. However,  I would not advise you to take this step immediately.

There are two ways to ask for flexible hours when returning from maternity leave and currently you have proceeded by making a general request.  Your employer is under a duty to consider the request and can only refuse the request if there are good reasons for not being able to accommodate the hours you have asked for.  If his refusal of your request is unreasonable then you could claim sex discrimination. But, the other way to request your change in hours is through flexible working rights under the Employment Rights Act 1996.  Employers must follow a set procedure and will only be able to refuse a request where there is a recognised business ground for doing so.  There are strict time limits that must be followed in this procedure and a meeting must be held with you to discuss your request within a set time period.  If your employer fails to follow this procedure or does not give proper business reasons for refusing your request, then you can claim compensation.  To make a flexible working request you must satisfy certain conditions, such as:
a) Be an employee.
b) Worked for the employer continuously for 26 weeks at the date the application is made
c)  Not to have made another application to have worked flexibly under the right during the past 12 months.

To make the request, you must make a dated written (whether on email, paper or fax) request to your employer setting out the following:
a) That the application is made under the statutory right to request a flexible working pattern
b) Confirmation that you meet the eligibility criteria.
c)  The flexible work arrangements that you seek, to care for your child.
d)  An explanation of what effect, if any, you think making the change could have on the employer and how, in your opinion, any such effect might be dealt with.
e) The date on which the proposed change should become effective.
f)  Whether a previous application has been made to the employer and if so, when it was made.

My advice at this stage is for you to lodge a formal application for flexible working upon your return to work on the 6th December 2010.  You need to submit this as soon as possible.

If your employer does not deal with your flexible working request properly, then you will potentially have the right to bring a claim for sex discrimination/failure to properly consider your flexible working request and you will then be in a stronger position to resign and bring a claim for constructive dismissal.

My advice at this stage is not to mention that you may be pregnant again and, as you will be aware, most women do not reveal this until after their first scan.

It is also worth noting that if your employer does plan on making you redundant, he must follow a fair procedure prior to doing so, failing which you will have the right to bring a claim for unfair dismissal. Furthermore, if you carry out the same role as any other employee at the Company, and there is a risk of redundancy, given that you are currently on maternity leave, you have an additional right over and above any other employee carrying out a similar role to yourself.  That additional right is that you have the right to be offered any suitable alternative employment over and above any other such employee.  It is not clear from your query whether or not your position is a stand alone position or whether there are other employees carrying out the same role as yourself.

Whilst every care has been taken in compiling this answer, WorkingMums cannot be held responsible for any errors or omissions. This information is not intended to be a substitute for specific legal advice.

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