Do I have a case for unfair dismissal?

[dche6472]

Hi, I hope someone can help as I feel like I'm being taken advantage of and considering going to Tribunal. Apologies for the length of this post.

I'm due to return to work after taking AML. I was meant to go back on 1 July but due to delays on their behalf I haven't returned e.g. HR person I originally spoke to had left the business. I unfortunately lost my 1 year olds nursery spot (until September intake) because of these delays and immediately informed them.

I chased them for an update on Thu 16 July where they informed me that they had considered the options but couldn't entertain my return in September. I asked them what options they had considered and if they had considered the options I originally spoke to HR about e.g. taking accrued leave, taking unpaid parental leave or a phased return and they said no.

At midday on Fri 17 July I received a 'signed for delivery' letter from them. It said that if I didn't return to work on Monday 20 July on my current hours and T&Cs they would assume I had decided to leave their employ. I immediately sent an email advising them that this assumption was incorrect and asked whether I was being dismissed.

It was at this point that I started feeling harassed and that I was being taken advantage of.

Giving them the benefit of the doubt we meet on Wed 22 July. At this meeting I had first sight of my job description nb. something I had been asking for since 2 June.

I was surprised that my job role had changed from 'marketing manager' to 'product manager', a more junior position that I last occupied in 2006. I was also reporting into the 'European marketing manager' where I had previously reported direct into the UK CEO and the company chairman. At this meeting we agreed a phased return to work (back on Mon, Tue/Wed as hols with Thu and Fri TBC) and I walked away, dismayed that my job was now more junior but glad I had a job.

When I returned home I googled my rights after taking AML and discovered that I had the right to return to my old job on my old terms and conditions unless it was “not reasonably practicable”. And if it wasn't reasonably practical then they needed to offer me a suitable alternative job on similar terms and conditions.

I emailed them stating that I felt the new marketing manager had taken my role and asked them why it was 'not reasonably practicable' to give me back my old job. In response they said all they had to do was maintain the T&Cs and they 'expect(ed) to see me back at work Monday and all of next week on your contracted hours'.

I responded saying I had the right raise my concern and their sudden withdrawal of my agreed phased return may be regarded as harrasment. I complained about this and in response they reinstated the agreed plan to phase me back into work.

So I was wondering

1. Although I haven't been dismissed, if I leave this job because of my demotion, can I claim unfair dismissal / discrimination with the Employment Tibunal?
2. Is the 'reasonably practicable' test a deciding factor by the Employment Trubunal as to whether I've been treated unfairly?
3. I've stated that I will working under protest until I receive legal advice re. My rights under reg 18 of the Maternity and Parental leave regulations (as amended) 1999 and the Employment Rights Act 1996. What other advice would you give so as to not reduce the strength of my case at the Employment Tribunal.
4. I can't go into work on Tue or Wed next week. They're aware of this and said they would grant them as holidays. If however they change their mind and refuse to let me take Tue or Wed off as holidays, what should I do? I have a Physio appointment and have organised other appointments that I will lose cash on if I cancel them.

Many thanks in advance for reading and I hope someone can help,
Thanks, Diane

Have I read your post correctly - you've had nine years maternity leave?

No!!! I miss read your question - sorry. You haven't been dismissed but you might consider going for constructive dismissal but it would be worth getting specialist advice first.

Try: www.maternityaction.org.uk/wp/

I am confused as to why you didn't just start back on 1st July as that was the end of your mat leave and when you were entitled to/should have returned.

If you wanted to change your days/hours there is a process to follow to request this.

The fact is, workplaces change which is why employers don't have to return you necessarily to exactly the same job. It does seem as if there has been poor communication on all sides.

She wanted to go back on 1 July which was presumably earlier than a year that said, assuming you gave them the requisite notice in writing I would have just turned up

I'm due to return to work after taking AML. I was meant to go back on 1 July but due to delays on their behalf I haven't returned

Delays or no, you should have reported to work on the 1st, having given them a month's notice of your return date.

I don't understand why you didn't turn up on July 1st?

You don't need to give any notice if it's your actual return date, you just turn up. If you want a different date think it's right weeks notice.

eight - even.

Your post is confusing. Was 1 July the end of your year maternity leave? All these "options" you are talking about, phased return/accrued leave/parental leave, were these all things you were asking for to delay your return beyond maternity leave entitlements?

What were they "delaying" leading up to 1 July? If that's the date you are due back, you turn up for work. What kind of leave were you on after 1 July?

If they've said they expect to see you "all of next week on your contracted hours" and you are contracted to work Tues and Weds, I can't imagine that they are going to grant you holiday. I'd cancel the appointments now and see if you can limit damage with the physio, and whomever the other apps are with. You might lose the money, but at least they might see you again if you give them some notice of the cancellation.

When you say it was the end of your aml on 1st July was that at the 9 month or full year point. Have you taken any accrued AL , is that what you are using at the moment? I understood that the same position had to be open for a year or one on identical terms and pay. If that is no the case then they need to discuss what is available and why. However if you had sought to amend the working hours etc they aren't under that same obligation to offer the same role on flexible terms, just put forward a business case for why not.

Hate to say it but your inability to liaise with Hr , or a manager about return date and subsequent childcare issues are not their problem. If you had intended to negotiate and resume working you should have taken up the nursery place when you had booked it for, or had alternative childcare a back up to fill in any gaps. It isn't unreasonable for them to expect you to be available for meetings and work.

I don't follow why didn't you go on the first and why you are arranging to do things on your work days next week.

What are you doing for childcare when you have your physio etc?

I'm taking this message that you were due to return but you have been given a different position.

Firstly, you must submit a Formal Grievance. There will be an internal grievance procedure. The employment tribunal will expect you to behave reasonably by putting your concerns in writing. You will need to exhaust this process.

Claims
You may have a discrimination claim by reason of your sex. This claim could be both a direct / indirect discrimination in accordance with the equality act 2010. You have a limitation date (to submit your claim) of 3 months less one day from the last incident complained of.

In regards to a constructive unfair dismissal claim I would hold off until you have completed your grievance. A part of that grievance you will have to show that your role still existed and it has been afforded to someone else placing you within a different role. Dependent on their response (I.e we're not providing you with your original position) then you could look to resign in response. You will need to ensure you do not affirm their breach by continuing to work for a period of time.

That's just basic advice but hope that helps.

Why was there any doubt about your return date? Were you refusing to return to your usual terms and conditions? I believe an employer has to offer you a similar job to the one you were doing before you started your maternity leave - it doesn't have to be the same.

Why the race to Tribunal when you don't seem to have a clear communication trail behind you? If you wanted anything other than a straightforward return this should have been notified in writing to the organisation in advance (usually two months before the stat return date) so that negotiations could have commenced. Did you do this? Are your requests in writing? What did you request? Flexible working? Extended maternity leave? Parental leave? Not sure from what you have written but you do seem a little vexatious.

My work presume that you will take a year off, and if you don't you need to give 2 months notice of the date you want to go back, so some woman take 6 months as that's when pay will drop down to only SMP, or some come back at 9 months when SMP stops. Most folk know what they will be able to afford so the 2 months notice isn't an issue really.

Also wondering why the date of return was an issue for the workplace.

This all sounds quite confusing and not very well communicated - returning hours should've been agreed months ago, not on your actual return date.

Why didn't you just turn up on 1st July?

How did their delays mean you lost the nursery place, surely you could've sent your dc to nursery regardless of your return to work date?

I'm not surprised they're not particularly happy about you wanting time off for appointments immediately after returning, couldn't you have arranged these while you've been off?

Oh and the different role they've offered you, is it the same salary as you were on previously or a drop in salary?

Was there a restructure while you were off?

I think you were at fault here for not returning to work on July 1st

Hi everyone, thanks for your posts. Your responses are appreciated.

I work for a small entrepreneurial business and they never had a HR function. The first I became aware of this is when I contacted them one month before my return date on 1 July. In fact they had no idea when I was due to return.

I made arrangements e.g. Childcare to return on 1 July and they held me off and wouldn't agree a start date saying they were trying to speak to the chairman, that we're trying to understand the situation etc. It was during this time that I lost my nursery spot because I live in east london and waiting lists are at least 18 months.

I heard nothing back and I chased up HR in mid July - the rest of the story is in my original post where I requested to use up accrued annual leave or using parental leave or a phased return after 1 July. The reason for the delay is because I have another son who is on school holidays (I can take both boys to next weeks appointments, so no childcare is needed)

Everyone's right in saying that I should have just turned up on 1 July.

I guess I was giving them the time they asked for so they could get their ducks lined up. In reflection I believe they recruited someone into my role, but not as maternity cover and when I contacted them about returning they sort if went into panic mode and created this more junior role for me (same T&Cs)

I should be grateful that I have a job to return to. The last time I went on maternity leave I was made redundant so I guess I'm sensitive about being sidelined second time around.

Alicewright86 thanks for your advice. I'll submit a formal grievance and see what happens. But if anyone else who has been in this position before or can provide some advice I'm all ears....thanks again everyone :)

Will you be turning up tomorrow? ACAS might be worth a call for advice. However if the pay and terms are same for the role offered it isn't really a junior position.

I still don't see why that made you lose the nursery place, you could've sent your dc in and kept the place, you knew you'd be returning very soon, within a month if not on the first - I don't think you can blame them for that at all

And sorry I don't understand re the HR - you say it's a small firm so has no HR but that you chased HR about your return date?

If 1st July was your official return date at the end of your statutory maternity leave, they had an obligation to reinstate you on full pay even if the asked you to delay your return by a,week or two. On that basis no need to lose the nursery place.

There are two sides to every story and I'd like to know the Employers.