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