To ask if this is maternity discrimination?

[Ohtheaudacity]

I am on maternity leave and due back to work at the end of May. I have a 4yo and 8mo. When I return to work I will have had a full year of mat leave. My pregnancy was uncomplicated but my son fell very poorly at 14 weeks old. He pulled through but is now being investigated for potential cerebral palsy. I had a meeting with my manager in January and explained my personal situation and how my desire now was to reduce my working hours/responsibility (my current role is senior management with a huge workload) to have a better work life balance. They were receptive to this and went away to work on a new position for me in the company in reduced hours/responsibility.

Today I had a further meeting with them where they outlined a new position to fulfil a business need and which suited my needs. I was made aware they had offered my current role to the person who is my maternity cover currently. However, it was then explained that my new role would be on a significantly reduced salary pro-rate, almost £6 an hour less equivalent. I raised a concern that as a woman returning from mat leave I was entitled to either my old job back or a different role on the same pay. They then said in that case I could either have my old role back on my old hours & salary, or accept the new job on the reduced salary (“hourly rate”).

I spoke to ACAS who advised because my employer has verbally offered my current role to someone else, they have effectively brought my current job to an end. As this has happened while I am on maternity leave and they have offered the role to my maternity cover, it could amount to discrimination. ACAS have also advised me that verbal job offers and acceptances are legally binding. My employer is therefore obliged to offer me a job on similar terms than I was on before as they have effectively brought my current job to an end.

Does this sound right? I don’t want to raise hell unless I have to as I work for a small company and I’ve been there for 15 years. I’d really appreciate any advice and will answer any questions. Thank you.

Do you understand that you will still get less money? You'll be paid pro-rata for the hours you do if they agree to a job share. That means less pay but it is not discrimination. You know that, yes?

Good point and just reiterating!!

Can you try to negotiate salary on the new role, taking on slightly more responsibility than they've suggested / pulling on your 15 years of valuable experience?

No acts act in the advice given

They have 100% misheard OP

If they have given the job to someone else and OP can’t have it - discrimination

They have offered if but OP can have it back - OP has not been discriminated against

The mat cover may take issue but that’s nothing to do with OP

OP needs to be grateful really as they didn’t have to offer her anything other than her old role

@MajorCarolDanvers

ACAS know what they are talking about. If they say you have a case then you do.

You should take their advice and follow it carefully b

And once more with feeling.

Acas have told her she has a case because, by offering the job to her maternity cover, they have removed the job from her. This is unlawful.

That is all entirely true. And she would have a case if this is what they had done.

The OP has confirmed this is not what has happened. Her job is still her job. If she wants it, it is hers. The company have confirmed that they are not removing it from her. They are not shoving her aside. The job is hers.

They may offer the maternity cover a sideways move or just end her contract. What they do with the maternity cover has nothing to do with the OP. All that matters, legally, to the OP is that her job is still hers. It 100% is.

If OP brought a claim against them, the first step is mediation. The company would restate their position that her job is and always has been, hers. She can have it. No issues at all.

That would be the end of the case.

ACAS have misunderstood her complaint. She has asked for a demotion. She does not want her old job. She doesnt want full time hours. She doesnt want senior management responsibility. She wants a new job down the ladder with less responsibility and fewer hours. They have created that job for her but it means a payout because it is a step down. This is not discrimination.

The OP is legally entitled to her old job or equivalent at the same hours and same pay. She has been given that. She has refused it and asked for a demotion.

She is not entitled to a totally different job whilst maintaining her senior management salary. It is not discrimination. Full stop.

Yes @Itsalmostanaccessory, exactly.

I still don’t understand how you could’ve thought fewer hours and less responsibility would equate to the same money as before.

I think that the OP has inadvertently confused the employer who is trying to do the right thing. Unless there is an undercurrent of attitude or 'persuasion' on the part of the employer, which the OP has not reported here, and which might make it discriminatory.

It might be that, maybe, the employer has procedurally done things in the wrong order or wrong way which makes it technically discrimination that the OP could bring a case for.

I think the OP needs to get some proper legal advice, and then on the basis of that explain to the employer what she means by "less hours/responsibility" as I agree that fewer hours is one thing (and also results in potentially less responsibility as a side effect e.g. if jobsharing or taking on half the number of projects or people to manage) but actually wanting a role that carries less responsibility is another thing.

If you want a certain pay packet per week OP, you are going to need either:

X hours at Y level of responsibility - this is your old job but having gone part time which they have to consider properly but not have to give you

or:

A hours at B level of lower responsibility (where A>X but not full time) - this is to be negotiated if your company has the business need for it and can accommodate it.

This of course has to be balanced by the OP (not your employer) against your quality of life and how many hours childcare you would need.

If they do not properly consider letting you have the first option, then that would be a different matter and discriminatory. But it's not clear yet IMO. It sounds to me as though your employer is one of the better ones and is negotiating with you, however clumsily.

So, I have somewhat of an update (yes I know it’s late but I’ve just checked my email…)

I have received an email from my manager explaining that my maternity cover has not “technically” been offered my exact job role/title. They have tweaked the role slightly and changed the job title slightly (think “head of sales” to “sales manager”). They say this new role is part of a wider company restructure and is effective 1st April. I am not due back until early June but when I am back I will join the team in this new, lesser worse paid job. Does this change things? Does this help my case? They are still, confusingly, saying that I can return to my old job if I choose, while in the next breath saying that job will cease to exist from 1st April 2022. I’m so confused!

If your job wont exist anymore then they need to offer you an equivalent job at the same salary and hours. Which sounds like the same job they have retitled. It would be yours, not hers.

If you dont want that job and you want the demotion then you can accept the job they have created for you.

Email them back asking:

What will be the title and salary of the full time job you would return to, which must be equivalent to the job you had when you went on maternity. See what they say.

They are allowed to restructure and change things, as long as they offer you an equivalent role. So ask them what role they are offering to match the one you had.

Then you need to decide if you want to go back to that or if you want the reduced responsibility you asked that. Reducing your role down the ladder means a paycut and that is not discrimination.

Thank you @Itsalmostanaccessory the restructure doc that I’ve been reading takes away some of the more time consuming and stressful parts of my current role and distributes tasks to two sub-team leaders (one of whom would be me in their vision!). This does change things as it reduces the takehome and workload from one particularly difficult element of the job. With the support of two others sharing my workload I feel I’d be better equipped to handle the job. My employer is saying I need to make a decision about all this by Friday next week, but it feels like a short amount of time to make such a big decision; which job I choose depends on childcare and that can’t be sorted at the drop of a hat. It’s also a big decision for my family that I can’t make in such a short space of time. I can’t sleep I feel so stressed about it.

Usually if you have taken 52 weeks leave then you dont need to tell them your return date. It's already set and you'd just discuss it shortly before to make sure it goes smoothly.

The difference here is that you've told them you dont want your old job, and they've sorted a new one for you. If you choose not to tell them anything then they will have to keep your old job/equivalent role open for you. They will hire people to fill the new roles. You then wont have a choice. You'll have to return to your original role or resign.

If you want the option of the other job, then you'll need to tell them before they fill the roles. If you dont, then they still need to give you the old job but you wont have options. If they try to tell you there is no job at all because you didnt choose then they are breaking the law.

I agree with @Itsalmostanaccessory. I would ask them to confirm whether it means that when you return, if you want to maintain your level / terms and conditions, that you would get the team leader job.

How many people does this restructure involve?

I Don think you can claim discrimination for verbally offering the job to someone else if they're still willing to let you have it. You're right, they do have to offer you a comparable job and salary to your old one, they did that and you turned it down so they offered you another role at the appropriate rate for that job, it's your choice which you take up.

My employer is saying I need to make a decision about all this by Friday next week, but it feels like a short amount of time to make such a big decision; which job I choose depends on childcare and that can’t be sorted at the drop of a hat.

But you were the one who initiated the request - surely you use whatever childcare plan you based your request upon.

They have bent over backwards to accommodate you and retain you, don't respond by creating drama. It will poison your employment relationship if you do.

Does this help my case?

You don't have a case. Continuing to make comments like that makes you sound like you are spoiling for a fight to try and force them to pay you the same money for a demoted post you requested.

It won't happen. There is no case. You need to snap out of that mindset.

@Ohtheaudacity

Thank you *@Itsalmostanaccessory* the restructure doc that I’ve been reading takes away some of the more time consuming and stressful parts of my current role and distributes tasks to two sub-team leaders (one of whom would be me in their vision!). This does change things as it reduces the takehome and workload from one particularly difficult element of the job. With the support of two others sharing my workload I feel I’d be better equipped to handle the job. My employer is saying I need to make a decision about all this by Friday next week, but it feels like a short amount of time to make such a big decision; which job I choose depends on childcare and that can’t be sorted at the drop of a hat. It’s also a big decision for my family that I can’t make in such a short space of time. I can’t sleep I feel so stressed about it.

A week is really not a short space of time. If you have taken 52 weeks of mat leave, not including annual leave you need to get it sorted ASAP, your rights to return disappear if I remember rightly.

Surely, you had some idea of how your childcare would work when you approached them?

I found this on maternity action. This is applicable if you have taken more than 26

However, if your employer can show that it isnot reasonably practicable for you to return to the same job, you are entitled to be offered a suitable alternative job on similar terms and conditions.

You have been offered the suitable alternative.

takes away some of the more time consuming and stressful parts of my current role and distributes tasks to two sub-team leaders (one of whom would be me in their vision!

Per your request!

They've gone so far as to consider restructuring their business simply to retain you as an employee - and your response is to throw a strop. Seriously.

@Ohtheaudacity

So, I have somewhat of an update (yes I know it’s late but I’ve just checked my email…)

I have received an email from my manager explaining that my maternity cover has not “technically” been offered my exact job role/title. They have tweaked the role slightly and changed the job title slightly (think “head of sales” to “sales manager”). They say this new role is part of a wider company restructure and is effective 1st April. I am not due back until early June but when I am back I will join the team in this new, lesser worse paid job. Does this change things? Does this help my case? They are still, confusingly, saying that I can return to my old job if I choose, while in the next breath saying that job will cease to exist from 1st April 2022. I’m so confused!

Agree with PP that the 'does this help my case' makes you look like you want them to mess up

I would caution you that the employment tribunals are really backlogged at the moment, you could easily be a year (depending on location) before you get a final hearing. Also, the employment tribunals don't work in the same way as the civil courts and you are responsible for your own fees no matter the outcome. If you were to instruct my firm (a reasonably large Scottish firm, but by no means one of the more expensive firms) you'd be looking at having to pay us circa £10k +VAT upfront to run this for you and you wouldn't get this back from the employer even if you win. No win no fee or legal aid options are fairly few and far between for employment work

OP they've done exactly what you asked and given you two options for your career going forward and you are acting shocked and offended by their flexibility.

This does read as if you are trying any which way to get your old salary whatever job you return to. Surely you must've understood that less hours and less responsibility would equate to less pay? Fundamentally, it was you who requested this and not them.

Bottom line is that you actually need to decide what you want to do here and until that point you're just pissing in the wind. If you want your old job (or the equivalent, which they've held for you and said you can have) then take it. If you want something 'lesser' then take that instead (they've also created and offered you this).

I completely get that it's a difficult situation for you, but I can't see where your employer has gone wrong. They're trying to do right by you, you just seem determined to be combative about it. Ultimately, the outcome of this is all in your hands.

@LadyCleathStuart

OP there was a very similar case to this in my local area a few years ago. I know about it as it made the paper because it was a high profile local employer. It was woman demoted after asking for part time hours on return from maternity.

Anyway the woman won her maternity discrimination case, as rightly she should have. I would say if ACAS are saying you have a case then you probably do.

To be fair your description suggests she was demoted because she asked for part time. OP is effectively asking for a demotion as she isnt just asking for part time but also less responsibility

Op, you seem happy to take on board the comments that people make that seem to agree with you, eg, the one by @Itsalmostanaccessory. But they are wrong. Ignore that poster. You have no claim here whatsoever. Ask for a job share on your old job. If they can’t agree to that,accept your old job back or take the new job on reduced pay and responsibilities. The only way you get to keep your current salary is by going back to your old job (or a similar one with similar responsibilities) full time.

had a meeting with my manager in January and explained my personal situation and how my desire now was to reduce my working hours/responsibility (my current role is senior management with a huge workload) to have a better work life balance.

I'd be the first one to support someone in a discrimination case. However, as you say above, you want fewer hours and less responsibility. Your employer has agreed to this - giving you the option of a role with reduced responsibility and a lower salary accordingly. Which means they would need to identify someone to take over your old role. Which they have done.

I can't imagine any court deciding that it is discriminatory to pay someone less for doing less, when the reduction in responsibility was at the employee's request.
Or am I missing something ?

@LadyCleathStuart

OP there was a very similar case to this in my local area a few years ago. I know about it as it made the paper because it was a high profile local employer. It was woman demoted after asking for part time hours on return from maternity.

Anyway the woman won her maternity discrimination case, as rightly she should have. I would say if ACAS are saying you have a case then you probably do.

That was because she was demoted, presumablyagainst her wishes. The OP has asked to have a role with less responsibility than her old job.

Yeah I’m also very surprised at what acas said. You requested this. You can’t honestly think you should do a lesser role for the same money?

Your old job is still available, they are permitted to verbally discuss with anyone else if they’d take the job since you indicated you don’t want it. This isn’t the same as a formal offer.

They are also entitled to restructure, it looks like they are making your current role redundant, so they will need to follow a consultation process and then give who they think is the best candidate the job, which could well be your maternity cover.

If your old job hasn't been formally offered to your mat leave cover so you can have it still, and you asked for less responsibility then its weird acas think you have a case. Yes you have to be given your job or another that isn't on less favourable terms, but when you specifically request less responsibility you're the one changing the spec essentially and it doesn't mean legally they have to pay you the same just as you're off mat leave.