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Q&A about employment rights after maternity leave - ANSWERS BACK

(59 Posts)
RachelMumsnet (MNHQ) Tue 19-Mar-13 17:31:18

A recent survey reported in The Guardian found that one in seven women is made redundant after taking maternity leave and many more return to find their jobs have changed; their hours cut or they've been demoted. This discussion thread showed that many mumsnetters have first hand experience of this and we thought it would be helpful to run a Q&A with an employment lawyer specifically about discrimination against women returning to work after maternity leave.

Natasha Joffe and Lydia Seymour are barristers who specialise in employment and discrimination law. They practise from Outer Temple Chambers and have a particular interest in parental rights at work.

Send your questions to Natasha and Lydia before the end of Monday 25 March and we'll post up their answers on 12 April.

Lydia&Natasha Fri 12-Apr-13 16:58:18

tiggerishtom

My Questions is after telling my company, who I have worked for for 13 year, that I was pregnant, they have decided to close the office and make me redundant.

What do I have to watch out for in the negotiations which are about to start, what am I entitled to? Such as, am entitled to my full years worth of holiday paid in lieu?

It’s a little hard to tell from your question exactly what your precise situation is. It’s not clear why your company is closing the office or whether there are other places you can work within the company. It almost sounds from your question as if there is a connection between you telling your employer you are pregnant and the company deciding to close the office. This seems unlikely unless it’s a very small office, but if it were the case, it would be unlawful discrimination. You are entitled during your pregnancy to have the same prospects of being redeployed as anyone else who is at risk of redundancy, so you should be being consulted about what redeployment opportunities there might be. If you believed you were not considered for any such opportunity because of your pregnancy, you might be able to bring a claim for unlawful discrimination and unfair dismissal. If you are a member of a trade union, it would be useful to get a union representative involved in the negotiations about your redundancy.

The other issue for you is what your financial entitlements are if you are made redundant. If you are made redundant before your maternity leave, you might not be entitled to Statutory Maternity Pay (SMP). In order to be entitled to SMP you generally have to be employed for at least part of the 15th week before the week which contains your due date. However, if your employer dismissed you in order to avoid paying SMP before the 15th week, you would still be entitled to it. You do not say how far along in pregnancy you are or when your employer is proposing that your redundancy takes effect but it seems that an important part of what you want to achieve in any negotiation is the continuation of your employment until at least the 15th week before your due date. If your employer is trying to terminate your employment before that date, this may suggest that your pregnancy and a desire not to pay SMP are at least part of the reason for your redundancy. That would be unfair dismissal and unlawful pregnancy discrimination. However, given that you have been employed for 13 years, you have a statutory right to 12 weeks’ notice of termination of your employment (possibly more if your employment contract allows for more), so hopefully this will take you up to the 15th week before your due date. Even if you are not entitled to SMP, you are likely to be entitled to Statutory Maternity Allowance. Have a look at the Department of Work and Pensions website for more details on Maternity Allowance.

So far as accrued annual leave is concerned, if you were not made redundant and took your maternity leave in the normal way, you would probably be entitled to take the annual leave you would have accrued during your maternity leave after your maternity leave. This is not absolutely certain because it depends on the interpretation of some complicated European law but many employers take the view that it is safer to assume that employees are entitled to take accrued annual leave after maternity leave. However, if you are made redundant before your maternity leave, you will no longer be employed during the maternity leave and therefore no longer be accruing a right to annual leave. So you are not entitled to pay in lieu of your annual leave if you are dismissed before your maternity leave starts. That said, if your employer is looking to achieve an amicable agreement with you about your redundancy, it is possible that this is something the company would agree to pay, so you may wish to ask for it as part of a redundancy package, together with statutory redundancy pay and any contractual redundancy pay which your employer may provide.

Lydia&Natasha Fri 12-Apr-13 17:00:44

Shootingstarsandcomets

Whilst on maternity leave my job was made redundant following a reshuffle. I wasn't told until I asked to go in to see them about retuning to work. They advised that they will try and offer me something else but they don't know what until nearer the time I due to return (September). I've asked to go part time but when do they have until to decide? I've got to work out childcare and if they won't allow me to go part time decide what I want to do- I don't want them to turn round in August and say I can't go part time and there is only a full time job available, also they've not even said what the job will be, I might not have any interest in it.

The first issue here is getting your employer to commit to providing you with a new role, as they are unlikely to be prepared to agree to part time working until the new role is identified. You may want to ask for information about the reshuffle, and understand the basis upon which your role was selected for redundancy in order to be sure that the decision was fair.

Assuming that you do not wish to challenge the decision to make your role redundant, you need to be provided with information about other jobs with your employer (and any associated employer) as they are obliged to offer you any suitable vacancy that exists. See also our answer to Princesssugar’s question. The issue of trying to get them to make a decision in good time for you to sort out childcare is more difficult. Until you are due to return they are not obliged to provide you with a role, and there is no legal mechanism for forcing them to decide by a particular date. All you can really do is to ask them to decide as soon as possible and give them any information that they might need. Once they have made that decision, then you can make a flexible working request - see the answer to Bluestorm’s question for details.

Do note that although it is fine to say that you would prefer to work part time when you return, your legal right is to return to your old role (or a suitable alternative if your role is redundant or it is not reasonably practicable for you to return), so if you say that you are only prepared to work part time you will effectively be giving up your right to return.

Lydia&Natasha Fri 12-Apr-13 17:02:35

Buntystninians

Hi, my situation is very similar to suresure: restructure means on return from mat leave I've been demoted to a job with lower status and narrower scope, though pay and benefits stay the same. Dept insist it is a suitable alternative role.

I now report into the person who covered my mat leave, she is on a more senior grade but they told me when appointing her to cover my role not to worry about that. They also appointed her permanently into our dept rather than a mat cover secondment. She now does my old role in all but job title.

Feel so stupid for being so naive and trusting. My confidence is shot to pieces.

Your situation does sound similar to suresure’s and the principles outlined in relation to her situation would apply to yours. In your case, however, there does seem to be evidence that your employer has deliberately appointed someone to your role on a permanent basis because you took maternity leave. This would be unlawful discrimination and you might be able to bring a claim to an employment tribunal. What you do not say in your question is when this all happened and so it is not clear whether you would be within the time limits for bringing an employment tribunal claim (if this is what you decided to do). The time limits are generally three months from the act or failure to act you are complaining about (or the last in a series of acts / omissions) and we would urge you to seek detailed advice as a matter of urgency. See the suggestions at the end of the Q and A.

Lydia&Natasha Fri 12-Apr-13 17:06:24

EmmyLH

Before leaving for maternity leave, in a meeting my manager informed me the 10 months I was taking was 'excessive' and unusual for the industry I'm in (even though I'm a PA). Whilst on leave, a colleague told me the COO had told her in passing that if one of the other pregnant employees took a year's maternity her career at the firm was over.

In my back to work interview, my line manager wasn't present and the COO told me I was being assigned a new job because it was unfair to disrupt my old team any further. Though same pay, I strongly feel the new job isn't as interesting or at the same level as the last job (they dispute this obviously). I tried to say i disagreed but was told I was being difficult and inflexible and i was employed as support and could be anywhere. Is this a good enough reason to assign me elsewhere? I strongly feel I am being 'punished' for taking so much leave. I also asked to bring forward my core hours by 30 mins earlier for the nursery pick up (I'm still full time) and this was also refused which was really hard for me to contest because I haven 't worked with my new team and didn't feel I could put forward a good case (whereas it would have fitted really well with my old team). The whole BTW interview was a disaster, lots of statements thrown around that were half retracted later after they called an HR Consultant, for example being told i would have to take A/L if my child was sick etc. The experience was so awful I am looking for a new job because I feel so forced out and 'redundant' as an employee.

Even yesterday, I had to listen to 2 colleagues talking about how brilliant a candidate they interviewed was but the only downside being she had just had a baby. It's so depressing.

As you say, this is horribly depressing. From the information that you have given it sounds like you have been discriminated against on the grounds of pregnancy/maternity and sex by reason of the comments that have been made. Perhaps more importantly it seems that you have been denied your right to return to your old role without any lawful reason, which is actionable in its own right as well as an act of sex or pregnancy/maternity discrimination.

Finally, you may have been indirectly discriminated against by reason of the refusal to allow you to change your hours. As things are so bad that you are planning to leave it is probably time to take legal advice on how best to protect your position (see Sources of free and paid for legal advice below). Please remember that strict time limits apply in the Employment Tribunal, and that the key date in your case may be the day of your back to work interview, so if you do wish to bring a claim it should be brought within three months of that date (i.e. if the interview was on 15 March 2013, for example, you need to have your claim at the Employment Tribunal no later than 14 June 2013). Time limits can be extended in certain circumstances, but it is far better to bring the claim in time if possible.

Lydia&Natasha Fri 12-Apr-13 17:08:34

nam207

I'm due to return to work in June but financially it looks like I may be better handing in my notice. My contract says I must return to work for 1 month or repay maternity pay. Would I be able to return part time as planned whilst working my notice or can my employer make me work full time? also, the last month off before I return to work is actually accrued leave. Could I hand in my notice at the start of this and so not actually go back to the office or is this considered part of maternity leave and therefore I wouldn't have returned? Thank you

It is not clear whether you have already applied to work part-time. If you have, and your employer has agreed to that, you should be able to work out your notice on that basis, unless your employer can show that it would have to make arrangements which would simply not be practicable if they had to be put in place for only a month. For example, your employer might have to take on another part-time employee to do the work which you would have done if you were full-time. Your employer might be able to say that, whilst it did not have grounds for refusing your part-time working request previously, it now does have a ground, ie that it cannot recruit someone on a part-time basis for a month only, when it will have to then recruit a full-timer.

If you have not yet applied to work part-time, it may be that your employer would come up with a legitimate ground for refusing your request if it would be difficult to accommodate the situation (see the answer to Bluestorm’s question for more detail on the grounds on which your employer can refuse a flexible working request and your rights in relation to flexible working). Much will depend on how flexible your employer is willing to be, so it would be worth speaking to your manager and/or your employer’s HR department.

The situation in relation to your maternity pay is complicated. Remember that your employer cannot claw back the proportion of your maternity pay which is Statutory Maternity Pay (SMP), only the extra bit which they pay you under your contract which is over and above SMP. The month of accrued annual leave is not part of your maternity leave but whether your employer can still recoup your contractual maternity pay if you give notice at the beginning of your period of accrued annual leave will depend on exactly what your contract says about this so you need to have a look at the contract and possibly take some advice if it’s unclear (see the outline of sources of advice at the end of the Q and A). A lot of contractual schemes simply say that you have to pay back contractual maternity pay if you don’t ‘return to work’ for a certain period. So there might be some argument over whether taking a different kind of leave counts as ‘returning to work’. Again a chat with your manager and/or the HR department might help; it may be that your employer does not generally seek to recoup maternity pay in these circumstances or that it would agree not to do so in your case.

Lydia&Natasha Fri 12-Apr-13 17:25:49

SOURCES OF FREE AND PAID FOR LEGAL ADVICE

FREE ADVICE
Legal aid is not available for employment cases, but there are various sources of free legal advice:
Equality and Human Rights Commission and Equality Advisory Support Service: The Equality and Human Rights Commission website has some excellent resources on equality law issues. There is also a free helpline for people with equality law problems called the Equality Advisory Support Service (0808 800 0082).

Law Centres: These centres provide free telephone and face to face advice (often in the form of drop-in sessions) for a particular area. There is a list of local law centres on the website.

Citizens Advice Bureaux: These provide free telephone and face to face advice on various legal issues, including employment disputes. You can use a CAB in the area in which you work or the area in which you live, and can find the relevant office by putting your postcode into the CAB website.

ACAS: This is a government funded services which provides a free helpline (08457 47 47 47) for people involved in an employment dispute or who are looking for information on employment rights.

ADVICE YOU MAY ALREADY HAVE PAID FOR
Trade unions: Unions will generally provide legal advice to their members, and representation if they feel that a case is worth pursuing to an Employment Tribunal.

House Insurance: Many people have legal expenses insurance on their house insurance policies (often without being aware of it) which can provide you with advice and representation in the event of an employment dispute. Every policy is different, and many will only provide cover if you have lost your job, so check the terms carefully.

PAID FOR ADVICE
There are lots of solicitors who specialise in employment law. It is worth asking around for a recommendation if possible, but if not, the Law Society has a database of solicitors which can help you find a specialist.
If you would like to instruct a barrister, you can do so either through a solicitor or directly (i.e. without having a solicitor as well). There is a list of barristers who accept instructions directly from the public on the Bar Council website.

RachelMumsnet (MNHQ) Mon 22-Apr-13 14:49:03

Many thanks to Lydia and Natasha.

g713mee Tue 02-Jul-13 17:45:21

I am currently on maternity leave and I am due to return to work on 1st September. I am on a full time contract at the moment.

A lot has happened with ilnesses in my family whilst on maternity leave making 2 members of my family disabled and myself needing to take them to hospital appointments etc... so I have taken the decision that I would not like to return to work for a while but I am worried about having to pay any maternity pay or holiday pay back to the company. I was forced by the company to take my full annual leave before I started my maternity leave as I was starting my maternity leave just 4 weeks into the new financial year and not returning until 4 weeks into the financial year after that.

I took the holidays for this financial year and I am not due to return until after the start of the next financial year, also I am on SMP (no enhanced maternity package). I was just wondering where I would stand on handing my notice in once the next financial year has started. My contract states I need to give one weeks notice but I am not sure if it is the same whilst on maternity leave.

Tenggay0424 Sat 31-Aug-13 22:48:39

Hi there.

I came back to work about 2 months now after taking 9 months Maternity Leave.

My husband and I works in the same department. Before I started my MAT Leave, our shifts are working fine. Opposite shifts, nearly as fixed as it is rotating just like the rest of the team. Come October time, another person was asked or given the task to do the team's rota and she totally excluded me on it because I wasn't there at the time without any consultation/notice. Some people noticed it, too, especially my husband. Since my husband's and the rest of the team's rota is a rolling rota of 6-week, I came back with a nearly flexible shifts (opposite shift as my husband) as the rest of the team has got a nearly fixed rota.

I felt left out and really kicked out of the team and felt discriminated or unfairly treated.

The last 12 week rota she gave me, 8 Saturdays she put me to work, 5 of them on nights. 4 Saturdays there, my husband is already working nights. So there is no family life after all. But the rest of the team have them.

My argument was she has 9 months to sort out something for me and within that time, she has the opportunity to remind people that there may be a minor change as I am coming back and would like to go back to the shifts I used to do. I feel like a patch, that depending on who's on annual leave or sick, then she'll put me down to do those shifts.

I just want a solid rota that I could work around my husband's shift with a 5 year old and 10 months old so that I could be organise and plan things in advance. This whole situation has cause me sleepless nights for the fear of not knowing what you'll be doing in the next 4-6 weeks while the rest of the department could know months ahead.

I'm not trying to be special here but I just want to be treated fairly. Need advise. Spoken to the person doing the shifts and she can't seem to get my message across. Next step would be to go to HR but then I have a feeling that they are on the management side and they'll say to me, this need to be discussed within the department level and so this will just go to waste.

Do I have a case here?

Thank you.

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