Was I not promoted due to my maternity leave?

I returned from maternity leave recently into a role where there are several people at the same level. I have just been advised that the other people in the role have all been given a promotion to a new title, but I have not. I have been told that my skillset does not match the new role. I cannot help but feel the reason my skillset does not match this role is because I was on maternity leave and therefore wasn’t able to gain experience during this time.
It’s worth noting that one of the people who has been promoted actually started the job after me. What do you think?

Business woman at a business center outdoors

 

Although it is not compulsory, best practice if a promotion opportunity becomes available would be to inform all employees who may be eligible in advance so that they have an opportunity to be considered for the role. If you were not informed that the promotion opportunity was available, I would recommend that you question why you were not made aware of this in advance – particularly if you believe that the other employees were informed.

It’s difficult to provide more detailed advice without knowing what the promoted role is and how much this differs from your current role in terms of the skillset required.

Your employer should ensure that you do not face discrimination because you have been on maternity leave. This covers direct discrimination, for example, if your employer deliberately failed to promote you simply because you have taken maternity leave, this would be unlawful. It also covers indirect discrimination, which is where a rule or criteria is applied to all employees equally, but places you at a particular disadvantage because you have taken maternity leave. If the promotion opportunity was only available to those who had gained particular experience which you were unable to gain because of your absence on maternity leave, this could potentially amount to indirect discrimination. Indirect discrimination can be justified if your employer can show that the rule or criteria or practice was a proportionate means of achieving a legitimate aim. So, for example, if they could show that a particular skillset or experience was a key requirement of the role and there was no reasonable other way that you could gain this experience now.

In the first instance, I would recommend that you raise your concerns with your employer. You can explain that you are concerned as to why you were not made aware of the promotion opportunity in advance and ask when this opportunity was made available and why you were not informed of this. You can explain that you are also concerned as to why the decision was made that your skillset does not match the role, as you believe that you have the same skillset as your colleagues that have been promoted, and in fact you have been employed for longer than some of the other individuals who were promoted.

You can request details of the job description and any person specification for the new role to help you assess this. You should explain that you are concerned as to the coincidence of the timing of this decision with your period of maternity leave and that you are concerned the reason you have not received the promotion is connected with your maternity leave. In support of this concern, you can raise that there seems to be no explanation as to why your skillset is suddenly considered different from your colleagues. You believe that had you not been on maternity leave, you would have also received this promotion and therefore you have been placed at a disadvantage by taking this leave.

You can either raise your concerns informally with your manager, in the first instance, or if you have already done so or you feel like they are unlikely to assist you to resolve the situation, you can raise these as a formal grievance under your Company’s grievance procedure. If you are not satisfied with the outcome of the grievance procedure you would then also have the right to appeal.

If you are unable to resolve the situation internally, you could consider exploring a claim for discrimination. However, when doing so you would need to consider the value of the promoted role to you – for example, whether this comes with a significantly increased salary and whether there will be any other implications for your current role of you remaining the only one in this role. If the practical differences between the roles is low at this stage, this would reduce the potential losses that you could claim in any claim. Any claim would need to be bought within three months’ less one day of the last act of discrimination, so I recommend that you take legal advice if you do wish to consider bringing a claim.

*Charlotte Farrell and Tabytha Cunningham are Partners at Paris Smith in Southampton. 



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