Should I be forced back to work early?

I am currently employed on a temporary contract and I am on maternity leave. My temporary contract is due to end while I am on maternity leave. My employer has offered me a new temporary contract due to commence at the end of the previous contract. However, I will be on maternity leave until next year and I want to finish my maternity leave. My employer has said I am not allowed to finish my maternity leave and I must either start the new contract in October, cutting my maternity leave short by six months or do not take the contract and I will be dismissed when my current temporary contract comes to an end. I have tried to compromise and have offered to come back to work in a few months, but they will not be flexible on the start date. I am not receiving SMP from this employer as I only started working there earlier this year. Is this maternity discrimination? Should my employer allow me to begin my new contract at the end of my maternity leave?

Maternity Pay

Statutory Maternity Pay is payable at two different rates

When a temporary, fixed-term contract ends on the expiry date and is not renewed, this constitutes a dismissal for legal purposes. Such non-renewal can be a fair dismissal, but it will depend on the reason for this non-renewal. If there is still the work to do and the only reason for not renewing the contract is because or related to your being on maternity leave, that makes the dismissal automatically unfair and discriminatory. You do not need to have two years’ service to bring a claim for this type of automatic unfair dismissal.

You have not said if the new temporary contract is doing the same or different work. Even if your original contract is not being renewed because there is a redundancy situation (that is, there is a reduced need for the work you were performing on the fixed-term contract), then the employer must always offer those on maternity leave any suitable alternative employment they have within their business ahead of any other employee and without competitive interview.

If you accept a role which is suitable alternative employment, the contract would start when the existing contract expires. Your employer is not required to delay the start of the contract to a later date but neither can it force you to end your maternity leave period early. They would have to arrange for someone to do the role on a temporary basis until you return.

It is not clear from what you say why your employer is not renewing the existing contract or whether the new temporary contract is to do the same role or suitable alternative employment. I recommend that you ask your employer for more information about why they are not renewing the existing contract and whether the new contract is suitable alternative employment. You should tell them you accept the new temporary contract and will return to work when the maternity leave ends, whether that is when you originally intended or your compromise proposal.

If the business does not engage constructively with you, you could raise a formal grievance regarding the situation. You could remind the company it is behaving unlawfully if it prevents you from exercising your right to take maternity leave. If they are unwilling to agree that you can accept the new role but return after October, then you could use that grievance as an opportunity to negotiate an amicable exit package, via a settlement agreement, with the business which could include compensation for discrimination and the loss of your employment. If settlement is not possible, you could
consider bringing an employment tribunal claim against the business. I suggest you take legal advice before you do this.



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