The majority of women who faced discrimination as a result of pregnancy and maternity...read more
I work in a school. I had informed the school I would return in June this year after being on maternity leave. Although this date was earlier than required, I had offered it anyway so I could reconnect and settle back in before the new school year would begin in September. I met up with the new head of department in June. He told me he was relocating me to the junior school whereas I had been mostly working at the senior school before I left. I explained that the junior school would not work for me as it was a lot farther for me to drive to and from my childcare. He offered no flexibility. I handed in my resignation the next day as I felt there was no way I could do the commute with my new baby. I have come back now at the beginning of September to work out my notice until 6th October. Firstly, they have not given me my old job back – it is being run by the lady who covered my maternity and I have been given menial admininstrative tasks to do. Secondly, now I see my job still exists as it was before I left, I have asked them to accept a retraction of my resignation as I only resigned because I thought my old job had disappeared and I would not be able to practically manage the new commute with a child as well. And I have asked them to reinstate me in my old job. I am still waiting to hear, but in the meantime they have instigated a grievance process. After the first grievance meeting they said they would only partially uphold my grievance. I appealed this as I have not been given my old job back and my maternity cover is now doing my work. On top of this the school stated that there was a need for more staff at the senior school and that my maternity cover had not taken my role but was doing it in addition. I disagreed as I am not doing any of my old work now, but she is and I am being given menial tasks. I am now waiting to hear from them after our second grievance meeting. Their main argument seems to be that in my contract it states that I can be required to work between either of the school sites, which is true, but before I left on maternity I was working 80% up at the senior school and the new role I was told I had to accept was 100% down at the junior school. On top of that my role still exists at the senior school but is being done by someone else. What can I do next?
Whilst I have attempted to answer as best as I can, the advice given is only on the basis of the information set out in your enquiry and therefore I would suggest that you take legal advice on the full facts of the matter.
It is not clear from your enquiry as to how long you have had off on maternity leave.
If you have taken only Ordinary Maternity Leave (“OML”) of up to 26 weeks, or have returned before the end of OML, you are entitled to return to the same job in which you were employed before your maternity leave commenced. Your terms of employment must be the same as, or not less favourable than, they would have been had you not been absent. You will be entitled to benefit from any improvements as if you had not been away, such as a pay rise or any other changes to your terms and conditions for your grade or level.
Similarly, after Additional Maternity Leave (“AML”) (of which you can take 26 weeks, beginning on the first day after the end of OML) you are generally entitled to return to work to the same job, on the same terms and conditions as if you had not been absent. However, if there is some reason (other than redundancy) why it is not reasonably practicable for your employer to allow you to return to the same job (for example, if there has been a reorganisation), an employer has more flexibility and can require you to return to a suitable alternative job, albeit that job needs to be suitable and appropriate for you and on no less favourable terms and conditions than you would have been on had you not been absent.
From the information you have given, even if you have taken AML, your job is still there and on the facts, it would have been reasonably practicable for you to return to it. Whilst I would need to ensure that I have the full facts before advising you for certain, it seems that you may have a discrimination case against your employer as you have been treated unfavourably and you have suffered a detriment, namely losing your job, as a result of being on maternity leave.
If the grievance complaint is not upheld, you can bring a discrimination claim whilst you are still employer. However, any such claim needs to be submitted before the end of the period of three months starting with the date of the act to which the complaint relates. Therefore, your employer may argue that your three month time limit started from 5 June, when you were told that you were not able to take up your substantive post on your return. However, where an act or acts of discrimination extend over a period (“a continuing act”), they are treated as having occurred at the end of that period. Therefore, time does not start to run until the end of the course of discriminatory conduct. Given that you are currently involved in a grievance process, the subject of which is the alleged discriminatory treatment, it would be open to you to argue that there is an ongoing situation or a continuing state of affairs – a continuing act.
Furthermore, if it is that your resignation is not retracted, you could also bring a constructive dismissal claim on the basis that you have had no other choice but to resign as a result of your employer’s conduct. This type of claim needs to be submitted within three months less one day of your last day of employment. The two claims can be submitted together so long as the relevant time limits for each are adhered to.