I began my job on a fixed-term contract and it was extended twice, initially by six months and then when I fell pregnant, extended to cover my one year’s maternity leave with a view to being permanent. My employer has now agreed that there will be a new, larger team put in place, but they are re-writing job descriptions. I have been there for 19 months and it will be 21 months by the time interviews for my role take place. I have been told I have to reapply, but this means in theory I may lose out on the post. I thought that being on maternity leave, I would have more protection than having to reapply for the post I am currently doing, especially since I would have to reinterview whilst still on maternity leave. What are my protections and what should I ask when discussing a return to work? My fixed term is due to end soon. If I don’t get the role, do I get to complete my fixed-term contract? Is it fair if I don’t get the same post, but someone else comes in to do it just as I finish maternity leave?
You are correct that you have various rights whilst on maternity leave, and in relation to the job that you return to when that leave ends. I note you plan to take 12 months leave, but in any event won’t be returning to work before you have completed at least six months of ordinary maternity leave. I note also that you are on a fixed-term contract. Theoretically your employment could be terminated due to the expiry of the fixed-term contract, but in the circumstances you describe, you may have grounds to challenge such a decision. You mentioned being told it would become permanent. Do you have evidence that this was the intention at the outset? There are obviously a number of factors at play here, and more information would be needed to give a specific view, but I have set out the position more generally below.
If you stay on maternity leave for more than 26 weeks, this is known as additional maternity leave (AML). When you return to work from AML, your employer has a bit more flexibility about the role you return to where there is a reason (other than redundancy) why it isn’t reasonably practicable for you to return to the same job (such as, like seems to be the case here, there is a reorganisation). In that case your employer can move you into a different role, but it must be both suitable for you and appropriate in the circumstances, and on terms that aren’t less favourable than they would have been if you hadn’t been absent.
This doesn’t sound like a redundancy situation, but if it were redundancy, you would be entitled to be offered a suitable alternative vacancy (i.e. generally one that is on the same terms and appropriate for you and your skill set) where one is available. You would potentially have priority over other employees who were also at risk. If your employer didn’t offer you such a role where one existed, you would potentially have a claim for automatically unfair dismissal.
In terms of being contacted during your maternity leave, your employer is entitled to make reasonable contact with you. Indeed, your employer would be heavily criticised if it didn’t notify you and involve you in the consultation about such major changes. I would suggest you engage as much as you can in the process to ensure that you secure the best position for you. If you find yourself without a position at the end of your maternity leave, it would definitely be worth making an appointment with a solicitor to discuss the circumstances and reasons for the termination in more detail to explore whether you might have a claim.
*Marie Horner is an experienced senior employment law specialist at ALT Legal in Wetherby.