I have been with my employer on a fixed-term contract for more than two years. The contract has been renewed multiple times and has now been extended by nine months to allow me to take advantage of the enhanced maternity package (even though this would have been available to permanent staff with far fewer months of service behind them). I am due to go on maternity leave in mid-June 2019. However, the contract extension does not cover the full 12 months statutory maternity leave entitlement. As such, I’ve very recently been informed I will need to return to work within the contract extension period (when my child will be only 6/7 months) for at least a month in order not to pay the enhanced package back (or use accrued annual leave) if my employers do not extend my contract further. A further extension is unlikely to happen as the team I work in is soon to be restructured, with only permanent staff in scope to be matched to the new roles. This means I will be forced to return to work before I am ready in order to meet a policy that does not apply to permanent staff and only applies to me because I am being forced out of a job. Ideally I would wish to return to a long-term work opportunity (if not permanent) when the baby is 12/13 months. In addition, I would find it very difficult to look for work when I have a small child as my level of seniority means highly complex, and draining interview processes, which I will not be in the frame of mind for (I also have a four year old). The whole policy feels unfair. My employers have said they will review it in future, but this does not put me at my ease as there is no level of certainty. I would like to enjoy my maternity leave, but will have this hanging over me. Do I have any legal rights to challenge this?
I understand that you are on a fixed-term contract and shortly due to go on maternity leave. As your current fixed-term contract ends 6-7 months after you baby is due, and unlike your colleagues on permanent contracts, you have been told that you have to return to work at that time, rather than at the end of the statutory 12-month maternity leave period or risk having to repay your maternity pay/not have your contract renewed.
Under the Fixed-term Employees Regulations 2002 (“the Regulations”), a fixed-term employee has the right not to be treated less favourably than a comparable permanent employee:
· As regards the terms of their contract (regulation 3(1)(a); or
· By being subjected to any other detriment by any act, or deliberate failure to act, of their employer (regulation 3(1)(b).
A fixed-term employee must compare their conditions to those of a “comparable” permanent employee. This is an employee who is not on a fixed-term contract and who is employed by the same employer in the same establishment on “the same or broadly similar work”, having regard, where relevant to whether they have a similar level of qualification and skill (regulation 1(2) and 2(1)).
Less favourable treatment can occur where a fixed-term employee is given different contractual terms to a permanent employee or where a particular benefit is provided to a permanent employee but not to a fixed-term employee, whether or not the benefit in question is contractual.
Less favourable treatment is only prohibited if it is “on the ground that the employee is a fixed-term employee” (regulation 3(3)). The burden of proof is on the employer to prove the reason for any less favourable treatment short of dismissal (regulation 7(6)). The employer also bears the burden of proving the reason (or principal reason) for dismissal in an unfair dismissal claim.
It appears from what you say below that your employer may be in breach of the Regulations by applying different conditions relating to your maternity leave and pay than it does to its permanent employees on the basis that you are employed on a fixed-term rather than permanent contract.
As a fixed-term employee, you have the right to request a written statement of the reasons for any less favourable treatment from your employer (regulation 5). The request must be in writing and the employer must respond within 21 days, providing full reasons for any actual difference in treatment, or a denial with an explanation if the difference is wrongly perceived by you. Your employer should explain, for example, whether it has undertaken any audit of fixed-term employees’ terms of employment, and whether any aspect of your package is designed to compensate you for any benefit given to permanent staff which you have not been given; i.e. the right to a paid 12-month maternity leave.
Unless the difference in treatment can be objectively justified, then you may have the right to bring a claim in the Employment Tribunal if you believe that you are being treated less favourably than permanent comparators on the grounds of your fixed-term status.
Claims under the Regulations themselves must be lodged within three months of the date on which the less favourable treatment or detriment took place, or within three months of the last in a series of dates if there was a series of similar discriminatory acts or failures.
*Lucy Flynn assisted in answering this question.
I would first advise you request written reasons from your employer regarding the issue of potentially less favourable treatment in the first instance and then obtain further advice regarding possible next steps, depending on the response you receive.
If you require further advice, please contact Tracey Guest on 0161 672 1425.