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I am currently on maternity leave from my full-time role as a Communications & Marketing Manager at a charitable organisation. Until now, my role has been covered full time, but now the woman covering my role is leaving for a new job. I am not due to return for up to four months. I have heard via another member of staff that the person providing maternity cover will be retained as a part-time marketing consultant. I do not know how long they propose to do this. The position was not advertised internally or externally. Should this have been treated as a new post, and therefore should I have been made aware of it and been given a chance to apply? Do I have a right to be told the details of her consultancy role (numbers of hours, duties, rate of pay, etc)? A colleague of mine is being made redundant, but as yet is still officially employed. She was told that she would be informed of any alternative opportunities at the organisation in order that she could apply. She was also not informed of the consultancy position. Should she have been?
I note from your question that another member of staff has told you that your maternity cover is leaving but that she will be retained as a part-time marketing consultant. I note that this role was not advertised internally or externally, nor do you know for how long their services will be retained. Generally speaking, consultants will be regarded as independent contractors (a self-employed individual), rather than being employees. They do not therefore enjoy the same employment rights and protections as employees and the terms on which they are engaged tend to be more flexible than would be the case with permanent members of staff.
Your employer may make “reasonable contact” with you whilst you are on maternity leave. Your employer should also keep you informed of any promotion opportunities or vacancies which arise during maternity leave. If not, there is a risk that you could have a claim for unfavourable treatment and/or unlawful detriment. Any such claim must be brought in the employment tribunal within three months of the discriminatory act and you must go through the Acas pre-conciliation procedures before submitting your claim. You may also be able to claim that your employer has breached the implied term of mutual trust and confidence in your contract of employment, entitling you to resign and claim constructive unfair dismissal. Such a claim must be brought in the employment tribunal within three months of your resignation and again, you must go through the Acas pre-conciliation procedures before you submit a claim. I would, however, always advise you to take specific legal advice before resigning from your employment.
In light of the above, I would suggest you ask for an informal meeting with your employer to clarify the situation and to raise your concerns. You should discuss with your employer how this job was advertised, whether or not this would be an on-going position that continues after your maternity leave and, if so, why they did not inform you about it so you could apply. If you are not satisfied with the answer your employer gives, then you should raise a formal grievance. If this does not resolve the matter then I would suggest you take further specific legal advice on the issue.
Should you require any further guidance on the above points then please contact Tracey Guest of Slater Heelis LLP on 0161 572 1425.
*Helen Frankland assisted in answering this question.