Can an employer change your role while your on maternity leave?

I am currently on Ordinary Maternity Leave (OML).  I have been informed that the project that I manage will undergo a restructure and have been invited to be part of the consultation process.  I have attended two consultation meetings and put business reasons forward as to why I do not think my role should be split in two.  There are also personal reasons why I wouldn’t want this it is effectively a demotion as half of my responsibility will be removed and I will receive a 5k pay cut.  The person who is likely to get the other half of my job and receive a pay increase is someone that I manage who does not have the same level experience or qualifications as me. So in summary, they will be demoting me in both status and pay to give it someone else.  Their justification for this is that they think my responsibilities are too much for one person.  I struggle with this because before I went on maternity leave, at no point during my supervision meetings and appraisals did my boss have a problem with my performance against my job description – in fact my appraisal states that I exceed expectations and my job description and was given a 3k performance related increment.  My temporary replacement (who was male) has left after six months of undertaking my role and he had suggested to my boss that the role be split.  I feel as though this has come about because I am on maternity leave.  Had I not have been on maternity leave, and continued to do a good job, I don’t think my role would be being split.

Does this amount to sex discrimination? It is my understanding that as I am on maternity leave, I have extra protection. If there are suitable alternative jobs in the new structure, I ought to be offered them before they consider the rest of the team.  I thought my employer would give me choice of the two positions given that they are my job split in two but my employer has asked me to apply along with everyone else.  Are they breaching maternity regulations here?

Finally, I have been searching for a definition of a suitable alternative but can’t come up with anything concrete.  Is a demotion (not being an overall project manager anymore) in status and a 5k reduction a suitable alternative? I fear if I refuse either half of my current role, they will say that I am therefore at risk of redundancy.  Would this be an unfair redundancy given that my job (as is was before the restructure) is still there to be done and there is no evidence to suggest that I am not capable of doing it? I would appreciate any guidance on this – I am sad that whilst I am trying to enjoy my time with my baby, It is being invaded with worry about this.

In response to your query, your employer is not complying with its legal obligations to you, given the proposals that have currently been put forward to you regarding the proposed change in your role. As you are aware, you do have additional protection given that you are on maternity leave. An employee can fairly be dismissed due to redundancy even if they are on maternity leave. However, if there is any suitable alternative employment available, then an employee on maternity leave is entitled to be offered this suitable alternative role, over and above any other employees.

In practice, tribunals tend to treat “suitability” as covering factors that relate to the nature of the job on offer, for example, job content, status, terms and conditions. In your case, a demotion in status and a pay decrease of £5,000 is unlikely to be classed as a suitable alternative employment for you. Furthermore, your employer may struggle to demonstrate that there is a genuine redundancy situation in any event. In respect of the other half of your job (which you have explained is likely to be offered to another person, whom will also receive a pay increase), I believe this would be classed as a suitable alternative employment for you. Consequently, if your employer does not offer this to you, it is likely that you will have a claim for sex discrimination and an automatically unfair dismissal. Therefore, if you refuse the role which is effectively a demotion and pay cut, and your employer subsequently makes you redundant, you would have a claim for an automatically unfair dismissal and sex discrimination.

You basically have three options:

  • 1. To accept the demotion and pay cut, if you so choose;
  • 2. To lodge a grievance, i.e. set out in writing to your employer the concerns you have regarding their proposals and the reasons for the same. You can also note that you have been advised that if you are dismissed as a result of refusing the role which is a demotion, this would amount to sex discrimination and automatically unfair dismissal. Hopefully, your employer will then investigate this matter and change its plans and offer you the better role.
  • 3. Leave matters as they are and wait and see what your employer does. Refuse the role which is a demotion and if you are then subsequently dismissed, please do contact me in relation to bringing a claim at the employment tribunal.

If you have further queries regarding the above, please contact me at Slater Heelis Solicitors and I can give you some further complimentary advice.

 




Comments [28]

  • Emma says:

    I am currently on maternity leave due to return in November I have requested flexible working hours, part time basis.
    I have been asked to go in for a meeting to which I have been told as I have requested to go part time I can not return to my current role as a showroom manager but i would have to change departments to a sales advisor and because of this change they are saying that my salary would also decrease due to the job role changing is this aloud? I was under the assumption that when you return they would change your pay as this is discrimination.
    Any help is much appreciated thanks

    • Mandy Garner

      Mandy Garner says:

      Hi Emma,
      If you have put in a formal flexible working request they can turn it down on any of eight grounds – see https://www.workingmums.co.uk/flexible-working-a-guide/. If you do not agree with the reason given or do not feel they have followed the process correctly, you can appeal. It seems they are saying that reduced hours in your current role are not possible and they are suggesting a new role for you which meets your requirements over hours but is on a lower rate. It is legal to make this offer, but you do not have to take it. You can return to your previous role on your previous hours.

  • Emma says:

    I am due back to work in sept after 12 months off maternity. I was previously joint deputy manager with 10 years of service and degree level. I’ve requested to only go back 3 days (previously 4.5 days). This was accepted but not to continue doing deputy role. They’ve suggested a much less senior role, but on minimum wage? Effectively making me the least paid member? Can they do this?

    • Mandy Garner

      Mandy Garner says:

      Hi,
      Have they rejected your request to work part time in your original role and, if so, on what grounds? There are eights reasons allowed under the legislation and they must show they have considered your request in a reasonable manner, eg, not dismissed it out of hand. See https://www.workingmums.co.uk/flexible-working-a-guide/. If you believe they have not done this, you should request an appeal. They can suggest an alternative part-time role, but you do not have to accept this and, if they have handled the request in the right manner, you can choose to return to your role on your original hours or try to negotiate something that works for both parties.

  • Paula W says:

    Hi I am totally lost I lost my job and career of 24 years following Postnatal Illness. I am now on the road to recovery and am looking to get another job however I decided not want to go back into the same industry and profession. I have no formal qualifications and have always worked my way up and proved myself in my jobs, therefore to putva title on what I would like to do is very unclear. I feel like I am looking for a needle in a haystack and have no idea where to start. This is really making my confidence waiver so any help would be gratefully appreciated.

  • Saara Day says:

    I am due to return to work after a full year maternity’s leave. I work in a stand alone role so had full responsibility for the marketing activities of my company. However, without my knowledge, they have recruited someone at a higher level than me and have also decided to keep on my maternity cover. My responsibilities therefore have diminished dramatically although my job title and salary remain the same. I therefore don’t feel that I am returning to the same role I had. Are there are any legal routes I could push here to regain my responsibilities?

    • Mandy Garner

      Mandy Garner says:

      After additional maternity leave, you have a right to return to your original position or a suitable alternative if this does not exist, for instance, if it has been made redundant. If your employer wishes to restructure, legally they need to consult fully with you and get your agreement. Have you raised your concerns about the change in the nature of your role? Do you consider this in some sense a demotion?

  • Bonnie says:

    I’m due to return to work after 11 months maternity and have requested to go back on a part time basis whichyl my empolyer agreed to. My problem however is that my role included being on call and being on the phone and or going out to carry out calls if need be. I feel I will be unable to carry out my role with the demands of a baby as I’m a single mother. Can I request that I not be expected to be on call?

  • Anonymous says:

    I am currently on maternity leave and due to return on April 1st. I asked my employer if I can work from home after my leave since most of my work and colleagues are remote too. They denied saying that the position should be in the office. I'm thinking if I should switch to a different department that offers a remote position, but that would be a like a demotion since it's part time and a lower pay. But atleast I get to work from home and spend more time with my kid. Any advice? 

    Editor: It's really a personal decision about how important homeworking is to  you. Is there any scope for ad hoc remote working in your current position, for instance? You also need to think about what you want to do in terms of work in the long term.

  • Anonymous says:

    I have recently returned to work after 9 months maternity leave, before i returned i contacted the HR dept to discuss my options and was told to speak to my line manager who had completely no clue and she told me she would contact me within weeks which she did not,i called her again and told her i was unable to return full time i dropped a day and she said this was fine. 3 weeks after my return to work she told me that she thought my request was only for a short time but seeing as i was looking to change this permanently i would have to be downgraded( change of role )and my pay would remain the same. in the meantime they have gone ahead and offered someone my role. i made a formal request to flexible working where i proposed compressed hours because i was told i needed to do my contracted hours. but this has been declined. i feel my application for flexible working was not given any thought. please advise

    Editor: Did you receive a written reply about the rejection outlining reasons? When was this? You can appeal against the rejection if good business reasons have not been given for rejection and they have not shown they have given your request due consideration. Employers can turn down a request on any of 8 grounds – see https://www.workingmums.co.uk/working-mums-magazine/hot-topics/7890872/extending-flexible-working.thtml. Have you agreed to the change in role and are you doing it?

  • Anonymous says:

    I am due to return to work next year in Jan. I am employed on a zero hour contract and would like financial stability. Would my employee consider changing my contract if asked them? Or would I have to look for another job.

    Editor: You could ask if there are any fixed hours contracts, but your employer would not have to offer you one.

  • Anonymous says:

    My wife is due to return to her job in February 2015 after being on maternity leave for 9 months. Before she left she was informed by her manager that she could return to her normal role for 3 days a week, she currently does five. My wife's manger has since spoken to head of HR to inform that she would only be required for three days however HR are now saying that they have changed her job description and that she will be required for the full five days. Is this legal? Can an employer change her job description whilst on maternity leave to add more responsibilities ?

    Editor: Her terms and conditions cannot be altered without full consultation – see https://www.workingmums.co.uk/advice-and-support/q-and-a/all/8178412/told-to-accept-new-shift-or-face-the-sack-ask-the-expert.thtml

  • Anonymous says:

    Am currently on meternity leave and was an acting manager, as my back to work is due my manager is saying she has employed someone to do my job and that I should take junior post. The person whom my job is allocated to was my junior and my qualification is even high than her.

    Editor: You do not say how long you have been on maternity leave, but if it is under a year you have the right to return to your original post if you have been off for less than six months and to the same post or a suitable alternative [ie same conditions] if this is not available. That means it has been made redundant etc, not that it has been given to your maternity cover – see https://www.workingmums.co.uk/advice-and-support/career-toolkit/6559548/do-you-know-your-maternity-rights.thtml.

  • Anonymous says:

    I returned to work from maternity last year, I dropped hours from 27.25 to 13.25.
    I wasn't consulted on what dept I would be going back to.
    I was told when I was in shopping by my manager that I wasn't getting to go back to the dept I worked on, that I would be going to a different dept. (lower pay grade)
    After being back for a few months I queried my wage one month as they had put holiday through wrong.
    I was then approached by member of staff that works in wages dept a few days later and told I was being paid too much. Spoke to manager who told me because I changed the terms & conditions of my contract (by dropping hours) that's why I got moved dept and they would have to change my pay grade to the lower.
    I told them I was not happy about that and that nobody ever explained in maternity meeting that I could loose out on wages if I did not return to the same working hours. Nothing in maternity pack to say they could change my pay grade either.
    I was then told I would have to wait until my old manager returned from sick leave and she would pass all the info onto her.
    A year has since passed and I was approached by my current manager about it and that she wants to have a chat about this in 2 days time.
    I'd like to know if they can change my pay grade to the lower amount and if so is it worth fighting for protected pay for a period of time.
    There were changes made to my original dept when I was on maternity and they 2 people were moved to different depts and I think got 2 years protected pay.

    Editor: Our HR expert Tara Daynes says: As you have  left it so late, they could legitimately argue that it is tantamount to accepting the changes. That said, she was entitled to return to a similar role, which means with no significant detrimental changes to  salary, grade etc. So she can still try with a greivance (especially if they have previously protected pay for 2 years), although I expect she would be out of time for a tribunal claim as it was well over 3 months ago that it all happened. 

  • Anonymous says:

    I am due to return from maternity leave in September and have been advised that the company no longer requires my role in the office location I work and that it will be now required in an office about 200 miles away. Are they able to just relocate my position as I would not be able to travel away from home? Would this be deemed as an unreasonable request and therefore have to make me redundant or are they within their rights to do this?

    Editor: See https://www.workingmums.co.uk/advice-and-support/q-and-a/all/5543313/job-relocation-ask-the-expert.thtml

  • Anonymous says:

    Hi – I have returned to work and was offered a similar role plus pay as I had before I went on maternity leave. However, I have suspicion that all this will change soon. So my question is how long after I have returned to my previous position can an employer legally change my role and responsibilities?

    Editor: If your employer wants to change your terms and conditions they must consult you - https://www.gov.uk/your-employment-contract-how-it-can-be-changed/getting-agreement

  • Anonymous says:

    Hi, I have just returned to work after my maternity to a different role (lower position). Due to the 10 years of service I have build up a high wages in the company. After 3 weeks of work I was approached by my manager and told that my wages would have to be cut by £1.60 an hour.As I'm only working 16hr it is £100 A month loss for me. On yop of it he expect of me to help the person who has taken my job over and do some of the things I used do. What do I do? I don't wanna loose the job but also don't wanna be treated unfairly. Please help
    Iwona

    Editor: Our HR expert Sandra Beale says: If the manager wants to cut the hourly rate then she must be consulted with and agree to the change in writing otherwise it is unfair dismissal. 

  • Anonymous says:

    I am due to return to work in 5 weeks, I was always told they would accommodate part time flexible working ect. Now I am being told that there is no part time roles so I will only be able to come back full time which is not what I am able to do.
    I am also 3 months pregnant and I don't know what I should do. Please help

    Editor: You should put in a formal request for flexible working. Your employer would then have to justify any decision to reject it. There are only eight grounds on which they can reject a request and they must show that they have given your request due consideration rather than just dismissing it out of hand because they don't like flexible working. See https://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml

  • Anonymous says:

    I used to work as a retail. manager for a small independent company. I am due to return to work and asked for 24hours not 36 which I have done for the past 4years. This was rejected and only offered 16hours. And cut my hourly rate by 50p and hour. Is this legal?

    Editor: Changes to your terms and conditions cannot be made without consultation with you and your agreement - https://www.gov.uk/your-employment-contract-how-it-can-be-changed/getting-agreement

  • Anonymous says:

    I am due to return to work after maternity leave (full year).
    Initially I was told had to be full time returning as role is full time need. No chance of part time or job share.
    They have now suggested a part-time role, but that I will have to have a pay reduction per hour. This is a significant drop and hourly rate offered is lower down on pay scale than I started on 10 years ago. They say this is due to one small aspect of role being removed. However, when initially employed that aspect wasn't part of role and was added only a few years ago to help out after a colleague left, there was no increase in wage for taking on the extra work at that time.
    the drop would mean a lower wage than other colleagues with less experience and qualifications and less service and would be in effect what a basic qualification and new member of staff would get in first year of service.

    What do you advise?

    Editor: Is this basically your former role made into a part-time role with one aspect of it taken away or a completely new post? See https://www.workingmums.co.uk/advice-and-support/q-and-a/all/1551601/do-i-need-to-accept-lower-pay-for-less-hours-ask-the-expert.thtml

  • Anonymous says:

    I am currently on maternity leave, due to complete my 12 months in March next year, although I won't be returning to work until June next year due to accruing annual leave. The company I work for is in the process of being privatised and my role has been assigned to a private company that has not be agreed yet. The terms and conditions of my role are unknown and I do not know if my role even exists as it was. I have had no consultation with the managers who have made the decision and I have not been allowed to give a preference of employer. I have always had positive appraisal and have given no reason for the the company to reassign me. I am qualified in my position as much as the next employee, but they have been given a choice. Are they allowed to transfer me across legally whilst subject to maternity leave? I am currently appealing the decision as I feel discriminated against and I wonder what grounds I have legally?

    Editor: You should be protected under TUPE if your job is being transferred to another company – see http://www.acas.org.uk/index.aspx?articleid=1655. In addition, under maternity legislation you have a right to return to your job or a suitable and reasonable alternative after additional materity leave.

  • Anonymous says:

    I am due to return to my job in March next year and have requested to do so part time which my employers were happy to explore. Since then (a month ago) the website for whom I work has changed significantly and therein my role and day to day tasks are changing and they now say I may not be able to return on a part time basis.

    I just wondered what my rights were in these circumstances?

    I am worried as the job is very 'real time' and before my leave often involved evening and weekend work which I fear I will be expected to comply with. They were initially very accommodating with my return to work and now don't seem to be sure about what I am returning to – so I am left panicking over childcare, what I can afford and what my role will even be!

    Any advice gratefully received!

    Editor: Did you put in a formal request for part time working in writing and have they accepted this? If not, you should do so and they will have to explore your request and there are only eight grounds on which they can refuse – see https://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml

  • Anonymous says:

    I am due back to work after my maternity. However, I cannot go back to my current job as full time so I requested part time. My employer is saying a part timer will not be able to do my current job and also they can't offer me an assistant role. They offered me an alternative role and paying me on a pro rata salary. I am currently on 25k and will drop to 14k. They are not obviously paying me my current role's hourly rate, but some other pro rata rate. What does that mean and can they do that?

    Editor: It sounds like they are offering a part-time job with less responsibility, etc. They can do this, but you do not have to accept it. You have a right to return to your original role or similar depending on how much time you have had off on maternity leave. Did you put your flexible working request in writing and has your employer replied in writing giving the reasons for turning it down? They can only turn the request down for one of eight reasons – see https://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml - and these must be objectively justifiable or you can appeal and try to reach a compromise which takes into account both your and your employer's needs.

  • Anonymous says:

    I’m due to return to work after maternity leave. My role was full time consultant before, I have asked to go back part time. My work say that the role of consultant is a full time role and if I want to go back part time I must take another role at less pay, is this correct ? Can they cut my pay?

    Editor: You need to submit a flexible working application in writing to your employer. They will then have to respond in a set number of days and give their reasons for rejecting the application. They can only reject it on a few grounds and these need to be reasonable. If you think they are not, eg that your role can be done part time and perhaps there are others doing it in this way, you can appeal – see https://www.workingmums.co.uk/advice-and-support/career-advice/197211/flexible-working-a-guide-for-employers.thtml. Otherwise they can offer you a role with less responsibility at a lesser rate if that fits with the hours you want. You only have the right to return to your original job on the original terms and conditions and negotiate for flexible working. The flexible working legislation is only a right to request, not a guarantee.

  • Anonymous says:

    Good afternoon, my wife has just had an informal return to work chat with her line manager during which he informed her that due to a reorganisation part of her role would be passed to other employees and she would have to take a job in a team that she was once managed. The content of her job will have significantly changed from business relations manager to in effect data entry and she will have lost her company car allowance. Is this legal?

    Editor: Could you send this through our Advice & Support/Q & A page box as then we will have your email and our employment law expert can ask for follow-up information, for instance, on whether only her role is affected and how long she has been on maternity leave for.

  • Anonymous says:

    Hi. My colleague is on maternity leave and due back next year. In the meantime I have been offered her role and have an amendment to contract letter which stated my new job title, exactly the same as hers and doesnt say ‘acting’ or ‘maternity cover’ but does say it is due to be reviewed next year – when she is due back. The business does not want her back, I have been told this as they don’t think she is very good but I’m now worried that they have given me her job and what if she wants to come back? I totally get it is legally her job but where does that leave me legally?

    Editor: see https://www.workingmums.co.uk/advice-and-support/q-and-a/all/6198638/told-that-company-wants-to-force-out-colleague-on-maternity-leave-ask-the-expert.thtml for our expert’s response.

  • Anonymous says:

    Hi, I am currently working full time as a supervisor. I am due to go on maternity leave Nov 2012. I do not want to return full time therefore know that I would most likely be unable to return to my usual role. In view of this I have been told that they would need to down grade me to another role. I am currently at the high end of salary for my job. This has been due to 9 years of service and excellent appraisal which have led to good pay rises. How can they or should they calculate my new salary on a lower grade? For example my starting salary was 15.5k 9 years ago. Now currently earning 24.5K. Lower grade salary would have started at 14K. Thanks.

    Editor: If you have questions for our employment law experts, could you go to the Advice & Support pages and send them in the box provided as we may need your email address to ask some additional questions in order to give you the advice you need.


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