Turned down for permanent jobs while on maternity leave: ask the expert

I was initially covering someone’s maternity and then fell pregnant myself. I have now been on maternity since July 2013 and getting my SMP. My contract didn’t have an end date and is just continuous, but still temporary. Since I have left the department has had three roles become available for permanent positions of my job. I have found out that the first one was given to a colleague back in August 2013 and she did not have an interview for it and I wasn’t advised of this position being available. The 2nd permanent role I was told I had to interview for, which I did, but instead they gave it to my maternity cover who has now gone permanent, the reason being that he gave better answers then me. At the time I was very ill still from the birth and not 100% ready for this, but I still gave it my all. Recently another permanent position has become available for my job (Nov 2013) and I was once again told I would have to be interviewed to make it fair to others. I brought up with my manager that I thought it was unfair that my colleague had been given a permanent job without an interview and that I wasn’t aware of this position being available. The manager simply replied saying that he wasn’t able to discuss other staff members. However, he did accidently send me an email that was meant for his boss, regarding this matter… I am currently the only one on maternity and temporary in the team. I attended the interview and now have been told that I was unsuccessful and they have decided to the give the job to someone else. I have asked for feedback in writing and they suggested that I go in to get feedback face to face, which I don’t have the time do with a little one now. I feel as though I am being treated unfairly as they seem to be giving the permanent jobs to less experienced people then myself even though I know the job inside out and simply because I am in maternity leave. I feel really frustrated knowing that I am experienced and after so many interviews for the same job I was doing, I am still temporary.

I understand that you are employed on a temporary contract covering a period of maternity leave and that you yourself then commenced a period of maternity leave in July 2013. I understand that your contract is ‘temporary’, but that it does not contain an end date. I understand that you are currently still employed on your previous contract and will be returning to your previous role following your period of maternity leave. However, three permanent roles have come up whilst you have been on maternity leave, but that you have been unsuccessful in being appointed to any of these three roles.

If you return to work after ordinary maternity leave (“OML”) you are entitled to return to the same job in which you were employed before your absence. Your terms and conditions of employment must be the same as, or not less favorable than, they would have been had you not been absent, unless a redundancy situation has arisen. You would also be entitled to benefit from any improvements as if you had not been away, such as a pay rise or any other changes to her terms and conditions for your grade or level. Similarly, if you take a period of additional maternity leave (“AML”), when you return, you would generally be entitled to return to work to the same job, on the same terms and conditions as if you had not been absent unless this is not practicable for a reason other than redundancy.

If your position would have been made permanent if you had not been on maternity leave, then you can argue that it should have been made permanent whilst you were on maternity leave. Failure to make your position permanent when it would have been made permanent if you had not been on maternity leave could amount to pregnancy and maternity discrimination and automatic unfair dismissal (if you end up being dismissed from your temporary contract) and/or unlawful detriment (if you remain in your job on a temporary contract). Even if it wasn’t your actual role that should have been made permanent, but instead, simply that alternative permanent versions of your role have become available, but you haven’t been notified of them/been successful in your applications, you could still argue that this amounts to pregnancy and maternity discrimination/unfavorable treatment/unlawful detriment. This is on the basis that you would have been notified of the jobs had you not been absent on maternity leave and/or would have been successful in your applications had you not been absent on maternity leave. This will of course depend on the reasons given by your employer for your being unsuccessful. Whilst on maternity leave, you should, in any event, have been informed of any promotion opportunities or vacancies which arise during maternity leave.

Any claim for pregnancy and maternity discrimination must be brought in an Employment Tribunal within three months of the act of discrimination. However, as a first step, I would advise you to submit a grievance to your employer setting out your concerns and attempt to resolve this internally. If you are not successful in resolving this internally, before submitting any claims in the Employment Tribunal please contact Tracey Guest on 0161 975 3823.

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