Sidelined on return from maternity leave: ask the expert

I understand that you have recently returned to work after a period of 52 weeks’ maternity leave. The employee who was covering your position (and also another position) is still in place until the end of April 2014. You have been left with nothing to do.

On your first day back, you were also informed that your employer was going to go through a re-structure, which would reduce the management positions by one, meaning that you need to re-apply for your jobs. I understand that the employee covering your position has also been included in the pool.

When you return to work after a period of additional maternity leave (‘AML’) you are generally entitled to return to work to the same job, on the same terms and conditions as if you had not been absent. However, where you have taken a period of AML and 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 different job which is both suitable and appropriate in the circumstances with terms and conditions not be less favourable than they would have been had you not been absent.

I would need more detail on the job that you have returned to but it appears that your employer may not have complied with the above requirements to allow you to return to your old job or to an alternative job which is suitable and appropriate. If your employer does not comply with these requirements you could have a claim for pregnancy or maternity leave-related discrimination. You may also have a claim for constructive unfair dismissal if you resign in response to your employer’s actions. I would however advise you to take further legal advice before resigning from your position.

I understand that your employer now intends to restructure and that management positions will be reduced by one. The special treatment afforded to women ends at the end of maternity leave, which is the end of the ‘protected period’. However you may still have a claim for pregnancy or maternity leave-related discrimination where the decision to restructure was actually made during your maternity leave (but implemented afterwards) or where you can argue that you have been treated less favourably because you have taken maternity leave. This would be on the basis that your maternity cover staying on has meant that you have had to reapply for your job and have less chance of being successful. You may alternatively have a claim for sex discrimination but you would need to identify a male comparator to show that you had been treated less favourably upon your return to work and I would need more information to be able to advise on this. Any claim for discrimination must be brought within three months of the act of discrimination. Also, if you are dismissed as a result of a redundancy exercise and your employer has not followed a fair procedure, you may have a claim for unfair dismissal.

As a first step I would advise you to submit a grievance to your employer detailing why you think you have been treated unfairly. If you are unable to resolve matters internally, you should consider submitting a claim in the employment tribunal for pregnancy discrimination or sex discrimination. I would however advise you to take further legal advice before taking this step. Please contact Tracey Guest on 0161 975 3823 if you would like further advice in relation to this matter.

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• Tags:
• Discrimination Self-employed Maternity leave Restructure