Told no role to return to after maternity leave

I work for the NHS, in a hospital. I returned to work after my maternity leave and agreed with my boss that my full-time role wouldn’t work part time and therefore I was offered a new part-time role on a six-month fixed term with a view to going permanent. I was unknowingly already pregnant again when this role started and I still had a month of the six left when I went on maternity leave again. My contract with the hospital was never changed to a fixed-term post and remained permanent. I am due to return to work soon and I am told there is currently no role available. The role I did for six months has evolved from a Band 4 to a Band 5 and has been filled on a permanent basis without my knowledge – I feel I would have been given the opportunity to apply had I not been on maternity leave. In addition, the only roles HR are coming up with are on a lower salary than my contract and there is no mention of protecting my pay. I was told that I had 4 options – to accept a lower band, worse condition role; to go onto retention (i.e. earn no money but keep my contract), to go onto bank or to resign and they would ‘try and prevent me having to pay back my Occupational Maternity Pay’. I’ve suffered terribly from PND this time round and this situation is causing me so much stress that I’m tempted to just resign and walk away. But then I think that’s exactly what they’re counting on.

I understand that at the point at which you left work on maternity leave, you were employed by the NHS on a part-time basis on a six-month fixed term contract. I understand, however, that this was with a view to this contract becoming permanent. Furthermore, I understand that your previous permanent contract was never actually physically changed to a fixed term. You are due to return to work imminently and you have been told that there is no role available for you. The role that you were employed in for six months has evolved from a Band 4 to a Band 5 and has been made permanent without your knowledge. You were not given the opportunity to apply.

Assuming that you took a period of additional maternity leave, you are entitled to return to the same job on the same terms and conditions of employment as if you had not been absent on maternity leave. If there is some reason (other than redundancy) why it is not reasonably practicable for your employer to permit you to return to that same job (for example, if there is a reorganisation) your employer then has greater flexibility. If your employer can show that it is not reasonably practicable for you to return to your old job, they can offer you a different role as long as it is both suitable and appropriate in the circumstances. Your employer should also ensure that any terms and conditions are no less favourable than they would have been had you not been absent.

The difficulty in your situation will be demonstrating the terms and conditions that you were engaged on before you went on maternity leave. Your strongest argument would be to try to demonstrate that the part-time role was not in fact on a fixed-term contract but was instead permanent. You would then argue that you have a right to return to this role or if it is not reasonably practicable for you to do so, you have a right to return to a different role, which is suitable and appropriate in the circumstances. I would question whether the new Band 5 role would be suitable and appropriate for you. I note that you were not even given the opportunity to apply for this role. You also state that there are no other available roles currently which are suitable for you.

Given the way that your employer has handled this situation, you may well have a claim for maternity/pregnancy discrimination. Any such claim must be brought in an Employment Tribunal within three months of the discriminatory act and you must go through the ACAS Pre-conciliation process before a Tribunal will accept your claim.

The message from your employer is unclear – on one hand I assume you have continued to receive maternity pay/benefits, therefore assuming you are still employed. However, on the other hand your employer seems to have treated your employment as having been on a fixed-term. If this was the case, the expiry of the fixed-term would have constituted a dismissal in law and would give you a potential unfair dismissal claim (assuming that you have sufficient continuity of employment) given that your employer appears not to have handled this matter appropriately. Any such claim must be brought in the Employment Tribunal within three months of the termination (the expiry of the fixed term) and again, you must go through the ACAS Pre-conciliation process before a Tribunal would accept your claim.

Your situation is particularly complex, given that your employer has not been clear and we would need more information to advise fully. My view however is that you need to submit a detailed grievance in relation to your current position. You then need to take specific legal advice very soon if the grievance does not conclude matters.

If you require any further assistance please do not hesitate to contact Tracey Guest 0161 672 1425.

*Helen Frankland assisted in answering this question.





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