Role changed on return from maternity leave

My wife is a nursery nurse working in a private school; she has just taken a year off on maternity leave and is due to return to work soon. She recently received a text from her manager telling her that when she returns she will not be teaching 3-4 year olds as she was when she left, but she will be in a different classroom teaching 2-3 year olds instead. Her job title won’t be changing, she will still be a nursery nurse, but she is not happy teaching the lower age range as she prefers teaching the 3-4 year olds. There have been other colleagues who have been off on maternity leave, but they have always returned to their own classes. However, they may have been teachers rather than nursery nursers.  Although she has been teaching 3-4 year olds for the last 13 years, my wife has on occasion been required to spend one or two days a week teaching the 2-3 year olds as the numbers in the classes change; she has been told in the past that the school consider their nursery nurses to be available to all age ranges and to work wherever they are required to go, although she has always objected to teaching this age group. However, when she went on maternity leave, my wife’s position was covered by a part-time person. The number of children grew and this part-time person was transferred to the younger class and a new full-time post advertised. My wife has no written contract. She has a meeting with the head teacher in the next few days. Is the school allowed to do what they have done?

I note from your question that your wife is a nursery nurse working for a private school. She has just taken a year of maternity leave and is due to return to her work soon.  I further note that she is worried as she received a text stating that when she returns, she will not be teaching 3-4 year olds, but will now be in a different classroom teaching 2-3 year olds instead.

After a period of additional maternity leave, your wife is generally entitled to return to the same job, on the same terms and conditions as if she had not been absent. However, if there is some reason (other than redundancy) why it is not reasonably practicable for the school to permit her to return to exactly the same job, she is still entitled to return to a different job, which is both suitable for her and appropriate in the circumstances. The terms and conditions must not be less favourable than they would have been had you not been absent on maternity leave.

As your wife has no written contract of employment it makes it harder to clarify what her actual job was before her maternity leave (i.e. was this specifically to teach 3-4 year olds or was it a more generalist role, where she can also be obliged to teach other age groups?). Much will therefore depend on the conduct between the parties throughout her employment at the school. In this respect, I note that in the past your wife had occasionally worked with the 2-3 year olds, but predominantly worked the 3-4 year olds. Yet you also state that your wife has been told in the past that the school consider their nursery nurses to be available to all age ranges and to work wherever they are required to go, which will help them to justify their decision to move your wife.

Your wife should argue that her job was to work specifically with 3-4 year olds and not a broader teaching role encompassing other age groups. If this is the case, this is the job that your wife is entitled to return to unless there is some reason (other than redundancy) why it is not reasonably practicable for her to return to this role. Your wife should ask why the school believes that it is not practicable for her to return to this role. It will not be enough for her employer simply to prefer to keep on the maternity cover in this role. The school needs to consider whether your wife should be offered her old job back in place of the maternity cover. If the school refuses to allow your wife to return to her previous role and is unable to demonstrate that it was not reasonably practicable for her to return to this role, this could constitute pregnancy/maternity discrimination. Any such claim should be submitted to an employment tribunal within three months of the discriminatory act and she would need to go through the Acas pre-conciliation procedures before her claim would be accepted by the tribunal.

Your wife may also be able to submit a claim for constructive unfair dismissal if she resigns in response to her employer’s treatment of her as this could constitute a fundamental breach of her contract of employment.  Any such claim should be submitted to an employment tribunal within three months of the resignation and, again,  your wife would need to go through the Acas pre-conciliation procedures before her claim would be accepted by the tribunal. I would, however, strongly advise your wife to take further specific legal advice before resigning from her current position.

Please note that the school is likely to argue that your wife is employed in a more generalist role and that her duties cover working with both 2-3 year olds and also working with 3-4 year olds. This would significantly weaken your wife’s case as she would in fact be returning to her actual role post-maternity leave.

Depending on the outcome of the meeting with the head, if this does not resolve the matter, I would suggest that your wife should raise a formal grievance regarding the way the school has handled her return to work. If this does not resolve the matter, your wife should take further specific legal advice in relation to potential tribunal claims.

Should you require any further clarification regarding the above points then please contact Tracey Guest on 0161 672 1425.

*Helen Frankland assisted in answering this question.

 

 



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