The number of senior level jobs which are open to flexible working is rising quickly,...read more
I am on maternity leave I am due back in the spring. I am contracted to 21 hours a week. Prior to my maternity I worked a 14-hour shift on Sundays and a 7-hour shift on Wednesdays afternoons. However, I emailed my HR department last week to ask if I could possibly work either on Saturdays, Sundays and Mondays as I now go to university from Tuesday to Friday every week. I work in a healthcare organisation where we work every day of the week. However, she phoned me and told me that they can’t accomodate my chosen days so I will have to apply for bank staff. I reminded her that I have worked long shifts on Sundays for the past year. She just said they have recruited a lot of staff since I left for maternity leave. I have since learned that someone has been employed permanently in my post. HR said if I apply for bank staff they will try and get me regular shifts. From my experience with this firm every member of staff struggles to get overtime. The next day I found a post advertised online for the same firm but a different department which suits my uni free days. I emailed the Head of the Department and she emailed me application forms. I then informed my HR and asked her what is the procedure if I would like a department transfer. I even told her that I have been sent application forms by the other department. She didn’t reply. I have also informed the new department that I am already an employee as I thought they weren’t aware. They haven’t replied either. Where do I stand? I haven’t applied for bank staff or resigned either. I just wanted to sort things out beforehand. Can the firm ask staff to apply for a bank post verbally? I feel I am not being fairly treated.
If you have only taken Ordinary Maternity Leave (“OML”) of 26 weeks, then you are entitled to return to the same job in which you were employed before your absence. Your terms of employment must be the same as, or not less favourable than, they would have been had you not been absent.
Similarly, if you have taken Additional Maternity Leave (“AML”) of up to 26 weeks’ leave on top of your OML then you are generally entitled to return to the same job on the same terms and conditions as if you had not been absent. However, if you have taken at least four weeks’ of AML and there is some reason why it is not reasonably practicable for the employer to permit you to return to the same job (for example, if there has been a reorganisation) then the employer has more flexibility. In these circumstances, you are entitled to return to a different job, which is both suitable for you and appropriate in the circumstances. Again, the terms and conditions must not be less favourable than they would have been had you not been absent.
If you have taken AML, then you do not automatically lose the right to your old job, the healthcare organisation must show that it is not reasonably practicable to permit you to return to your old job.
I understand that your employer hired a maternity leave replacement for you, and have made them permanent. This alone would probably not demonstrate that it is not reasonably practicable to give you your old job back. A simple preference for someone else to perform your role would not suffice and the healthcare organisation should still consider whether you should be offered your old job. Moving you into an alternate role in favour of your maternity replacement could amount to discrimination on the grounds of maternity.
If you cannot return to the same job, on no less favourable terms and conditions, or, where it is not reasonably practicable to permit you to return to the same job after AML, the healthcare organisation does not offer you a suitable alternative job, you may have a claim of pregnancy and/or maternity-related discrimination, automatic unfair dismissal (if there is a dismissal), and/or unlawful detriment (if there is no dismissal).
If the healthcare organisation offers you a role which is not suitable (i.e. on terms less favourable than the job you were employed in), then you can refuse to accept it and treat yourself as constructively dismissed (assuming there is no express dismissal). This would enable you to bring a complaint of unfair dismissal. Even if you accepted an unsuitable offer, you could still bring a complaint of unlawful detriment and/or pregnancy/maternity-related discrimination if the change in job or terms was because of your pregnancy or maternity leave.
On the basis of the above, the healthcare organisation should consider you for the role which has been advertised within a different department as this would appear to be a suitable alternative. I note that you have not heard back from the new department, and I would certainly advise that you chase this up as a priority. If the healthcare organisation fail to offer you the role within a different department I would suggest that you make a formal flexible working request for the job in which you were employed before your absence (see https://www.gov.uk/flexible-working/applying-for-flexible-working). Since 30 June 2014, any employee with 26 weeks’ continuous service has been entitled to request flexible working for any reason. The healthcare organisation must deal with your request in a reasonable manner and notify the outcome to you within the three-month decision period.
Unfortunately, you would not have a discrimination claim if the healthcare organisation refused your request as you worked part time before your absence. If you worked full time and the healthcare organisation refused to allow you to work part-time, or to change your working pattern, this may entitle you to bring a claim for unlawful indirect sex discrimination, whether or not the rules for consideration of a request for flexible working had been breached. This is because it has been established, statistically, that more women than men have childcare responsibilities and are therefore disadvantaged by a requirement to work full time.
If you require more tailored and detailed advice regarding your circumstances, please do not hesitate to contact me.