Restructure on return from maternity leave: ask the expert

I am on Additional Maternity Leave from my part-time job. I have been contacted by my employer about a restructuring.  My line manager is being changed, although I haven’t been advised any further. Also, a colleague who was at the same level of me when I left indicated that I would be reporting to him on return. Is this a job with the same status as I think I am entitled to? Also, this person has put in writing that my post will change and in his opinion should be a full-time role, which I am not interested in.  What are my rights?

Maternity Leave

 

When you return from additional maternity leave (ie. during the second six months of your maternity leave), you are entitled to return to the job in which you were employed before your absence, or if that is not reasonably practicable, to another job which is both suitable for you and appropriate for you to do in the circumstances.

If when you return from maternity leave, you are required to report to a different person, this is not necessarily a breach of your rights.  However, if you are required to report into a colleague who was at the same level as yourself prior to your maternity leave, this could amount to sex discrimination.

You should not be treated to any detriment in respect of your terms and conditions and opportunities for promotion, as a result of being on maternity leave.  If your colleague (who was at the same level as you), has been promoted whilst you were on maternity leave, to a position which you yourself would be capable of carrying out, and you have not been given an opportunity to apply for this position, you may have a claim for sex discrimination.

In respect of this person stating that your post will change and in his opinion should be a full-time role, there are two points to note.   Firstly, any business is entitled to carry out a review of its business requirements and posts can change.  If this is the case, this could amount to a genuine potential redundancy situation.

If the company has decided that your post has changed and, as a result of a restructuring exercise, your position no longer exists, you could properly be made redundant whilst you are on maternity leave. Providing the company follows a fair consultation process with you, this would amount to a fair dismissal.

However, you are given an additional right as a result of being on maternity leave. This is the right is to be offered any suitable alternative employment which the company may have, prior to any other employee whom is not on maternity leave.  Therefore, for example, if you and another employee both carry out the same role and the company only requires one person to do this role going forward – you have the right to be offered the remaining position prior to the other employee. If the company does not comply with this requirement, you will have a  potential claim for sex discrimination and automatically unfair dismissal.

Secondly, if this person has just decided that your post should be a full-time position, but in essence the post is remaining the same, this is unlikely to amount to a genuine redundancy situation.

Your role still exists and the company should recruit to obtain a new member of staff to carry out the additional hours that are required.  If you are made redundant after you return from maternity leave, as a result of this colleague stating that your role should be a full-time role, you would have a claim for unfair dismissal.

If the company proceeded on this basis whilst you were on maternity leave, as stated above you would have a claim for sex discrimination and, if you are dismissed as a result, you would also have a claim for automatically unfair dismissal.

Your options are to either wait and see what the company does and subsequently pursue a relevant claim at an Employment Tribunal.

Alternatively, you could approach the company on a “without prejudice” basis, note that they are acting in breach of your employment rights and that as a result, you could bring a claim against them at an Employment Tribunal, and suggest a termination package.

You should obtain specialist advice.




Comments [1]

  • Anonymous says:

    Should the employee be given noice that the job role no longer exists before returning to work?

    Editor: If a post becomes redundant an employer should give as much warning as possible to enable trades unions and employees to consider alternative solutions. You have the right to be individually consulted even if you are on maternity leave so being on maternity leave is not an excuse for not consulting you. If you are made redundant without any consultation, you are likely to have claims for unfair dismissal and sex discrimination. As part of the consultation process, you should be given an opportunity to contest your selection for redundancy. This may involve explaining to your employer any factors which may have led to your selection and of which your employer is unaware (e.g. a personal crisis at home which may have affected your performance temporarily or bullying at work). It is also an opportunity to consider other vacancies within the organisation which may be suitable for you. If you feel that your employer has not told you about redundancy before your return to work to avoid having to offer alternative employment as is your right when you are made redundant on maternity leave, you may still be able to claim unfair dismissal and/or sex discrimination and you should seek legal advice.


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