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I returned to work recently after maternity leave. Before leaving I held an additional administrative role which was not compensated financially, but came with a number of working hours attached. When going on maternity leave I was told that this post would be covered temporarily by someone who had done it previously but no longer wants the role. When I came in on KIT days it was to perform functions relating to the role with the expectation of returning to it. On my return, I heard informally that it had been offered to two other people who turned it down and that an external appointment is now likely to take on the role. My line manager has told me this, but says he has no authority to make the decision – this rests with his superiors who have contacted me directly about the role. While there was no additional financial compensation, it is understood that this was a prestigious role which is an important step towards promotion to the next level as I am currently on the highest pay grade in my post. Without it there are very few opportunities for career advancement. Do I have grounds for discrimination? As it does not represent a financial demotion per se I’m not sure whether I should try to fight this battle or not.
I understand that you have recently returned to work after a period of maternity leave. Prior to maternity leave you held an additional administrative role, which was not compensated financially but which was a prestigious role and important stepping stone towards promotion. I understand that on your return to work following maternity leave, you have discovered that this part of your role is likely to be given to an external applicant.
When you return to work following a period of ordinary maternity leave, you are entitled to return to the job in which you were employed before your absence with your seniority, pension rights and similar rights as they would have been if you had not been absent. The terms and conditions must not be less favourable than those which would have applied had you not been absent. Essentially therefore, you are entitled to return to exactly the same job you left and to be treated as if you had not been absent on maternity leave.
A refusal to allow you to return to the same position following your period of ordinary maternity leave may amount to pregnancy and maternity discrimination or sex discrimination. Any such claim must be brought in the Employment Tribunal within three months of the discriminatory act i.e. in your case the failure to allow you to return to your previous position. Furthermore, the ACAS pre-conciliation procedures must be completed before a tribunal will accept your claim. You may also have a claim for constructive unfair dismissal should you choose to resign in response to your employer’s treatment of you in not allowing you to return to your pre-maternity leave role.
However, I would advise you to take specific detailed legal advice before resigning from your current position. Any claim for constructive unfair dismissal must be brought in the Employment Tribunal within three months of your resignation and again, the ACAS pre-conciliation procedures must be complied with before a Tribunal will accept your claim.
Where you are returning to work following a period of additional maternity leave you have the same rights as someone returning from ordinary maternity leave although in limited circumstances your employer has more flexibility. Essentially, you are entitled to return to the job in which you were employed before your absence unless this is not reasonably practicable for a reason other than redundancy. In this situation, your employer can offer you another job which is both suitable and appropriate in the circumstances. The terms and conditions must still be not less favourable than those which would have applied had you not been absent on maternity leave. Again, should your employer not comply with this requirement, you are likely to have a claim for pregnancy and maternity discrimination or sex discrimination. The time limits set out above would again apply to you.
I would suggest that you firstly raise your concerns with your manager/HR on an informal basis. If this does not lead to a satisfactory conclusion of the matter, I would suggest that you submit a formal grievance outlining your concerns. If this does not resolve the matter for you, I would suggest that you take specific detailed employment law advice in relation to your options. Please be aware of the time limits for an Employment Tribunal claim.
*Helen Frankland assisted in answering this question.