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I’m due to return shortly from Additional Maternity Leave. My role is as a full-time manager. At the time I return there is a part-time supervisor maternity cover role coming up at a more convenient location. This role suits me perfectly, but my manager has said I will have to resign my role and take this one as a fixed-term contract. So I could be out of a job at the end of the contract. When others in the business have taken maternity cover roles their jobs have been held open for them. When I questioned this he said that is because they were progressing their careers not taking a step back like I will be. Is this correct?
I note from your question that you are due to return from a period of AML and wish to apply for a part-time supervisor maternity cover role with your employer. I further note that you have spoken with your manager and explained that when others in the business have taken maternity cover roles their existing jobs have been held open for them, yet you have been told you will have to resign in order to take the fixed-term contract because “they were progressing their careers not taking a step back”.
On returning from work after a period of AML, you are entitled to return to work to the same job, on the same terms and conditions as if you had not been absent. However, where there is some reason (other than redundancy) why it is not reasonably practicable for your employer to permit you to return to the same job (for example, if there has been a reorganisation), your employer has more flexibility and you must simply be allowed to return to a job which is both suitable for you and appropriate in the circumstances, with terms and conditions not less favourable than they would have been had you not been absent.
You are not therefore entitled to return to a different role but you are, of course, permitted to apply for a different role, if you wish. I would not, however, advise you to resign from your current role unless and until you are successful in your application for another position.
You state that when your colleagues have applied for maternity cover roles, their existing jobs have been kept open for them, but that you have been informed that this job is a fixed-term contract, the implication being that you would be out of a job at the end of the fixed term. Your employer is not obliged to keep your original job open for you if you move into another post.
However, you should be treated in the same way as everyone else in your application for the part-time maternity cover role and the terms and conditions of the role. If your employer treats you differently in your application for the new part-time role upon your return to work, you may have a claim for indirect sex discrimination 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. This is not straightforward, however, and we would need further information on the new role and how previous cases have been dealt with by your employer in order to properly advise.
Please note that discrimination claims have to be submitted to a tribunal within a period of three months from the date of the act to which the complaint relates and you also have to have undertaken the Acas Early Conciliation procedure in order for your claim to be accepted by an employment tribunal. Before submitting a claim, I would advise you to consider submitting a grievance to your employer in relation to your treatment. If this doesn’t resolve matters, I would advise you to take further specific legal advice on next steps.
Should you require any further clarification on the above points please do not hesitate to contact Tracey Guest on 0161 975 3823.
*Helen Frankland assisted in the answering of this question.