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[RowanMumsnet]

Hello

Mumsnet, Maternity Action and the Employment Lawyers Association are teaming up to provide a free online legal clinic all week this week, offering advice from specialist employment solicitors and barristers on pregnancy, maternity and parental rights at work.

Maternity Action reports huge demand for its advice line, especially topics such as redundancy during maternity leave, return to work, maternity pay and rights during pregnancy. On Mumsnet, the topic of employment rights is a hardy perennial.

So we thought we’d try this out to see if we can help make good, free advice available to all.

The clinic will take place on this thread. If you’re dealing with a work situation and you want to be sure of your pregnancy, maternity and/or parental rights, post an outline of your dilemma here. You don’t need to include identifying details: a specialist solicitor or barrister will follow up with you via PM if they need to know more.

You will also be asked by one of the volunteers, via PM, to disclose your name and the name of your employer so that possible conflicts of interest can be ruled out. Because PMs are critical to how this works, please don’t change your username within this thread, as it will make it difficult for the volunteers to be sure they’re exchanging personal messages with the right person. (Of course, if you want to change your username before posting your problem, that’s fine.)

Personal information collected via personal message for the clinic will be held by Maternity Action and will be deleted after 18 months. Private messages are stored on Mumsnet until the user deletes them.

Answers and advice from the specialists will be posted up on this thread. The clinic will run for a week; we will do our best to provide all answers during the week but, at the latest, by the end of the following week. You can find information on where to go for more help once the clinic has ended here.

Finally (!) - for anyone who takes part - we’d love it if you could fill in Maternity Action’s feedback survey once the clinic has finished, so that we can find out how effective this has been for you.

Important: The advice provided to an individual poster is based only on the information provided by that poster. Advice on this thread is also particular to the individual who has asked for it and is likely to be specific to that person’s situation. A poster may have provided further relevant information by private message which will not appear on this thread. So please take care if you choose to apply that advice to your own situation - it is recommended that you first take legal advice from one of the sources we have recommended here.

The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. (You can read more about how this works, and the complaints procedure, here.)

Mumsnet, Maternity Action, Maternity Action's volunteers and the Employment Lawyers Association accept no liability for any loss suffered as a result of an individual choosing to follow advice provided to another poster's question on the thread. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here.

So, please feel free to get posting with your dilemmas and questions for the lawyers. (Any non-legal questions about how this will work, please feel free to post those too.)

Thanks
MNHQ

@Snoozername123456

I won a grievance at my work after being passed over in favour of an unqualified male colleague with no relevant experience for a position I had university qualifications for and several years experience doing that exact job. This was after being told it was a man's job. I was then given the same role as another male colleague but was refused equal pay until I won a grievance about it. There were numerous comments about my pregnancy/gender. Later (so not included within the grievance) during a "recruitment ban", my employer advertised my job description, at a higher pay grade and recruited a male former colleague into the post, while I was still in it (no performance issues), I then got made redundant (voluntary, but clearly my post had been subsumed into the new post, so jumping before I was pushed). The stress of all this had a significant and physical impact on my health. I have developed ME and fibromyalgia, the symptoms of which appeared just after the recruitment incident nearly 3 years ago. I am now unable to work full time and struggle with normal day to day activities. My consultant has confirmed in writing that in his opinion the stress at work was the trigger for my illness. I have written evidence for all of this and I want to take my former employer to court, but I can't find a solicitor who can take my case; either they don't do employment issues or they only deal with accident/injuries etc. Who can I go to or how can I do it myself without a solicitor?

I am very sorry to hear about your previous difficulties at work and the adverse impact this has had on your health. Given that events took place nearly three years ago, it would be difficult to bring a claim in an Employment Tribunal. The general rule is that you have 3 months from the time of the unfair treatment to bring a claim. However, you may potentially have a personal injury claim. Given that I am not a specialist in this area, I would suggest that you visit your local Citizens Advice Bureau or local Law Centre who will be able to review the facts of your case and any relevant paperwork. You may also be able to find a personal injury lawyer using the Law Society's online search: solicitors.lawsociety.org.uk/ Wishing you the best of luck.

@AfterAdvice

I am choosing not to take medication during my pregnancy because it cannot be guaranteed as safe for my baby. I don’t know for definite but it is possible that I might be fit for work, instead of being off sick, if I took this medication. What I have been offered is from a psychiatrist from the perinatal mental health team for depression and anxiety, and I’ve been told there are risks with taking it. Can work penalise me for not taking medication to potentially reduce my sickness. Well

Dear AfterAdvice
Ultimately it is up to you to decide on any medication that you take, in consultation with your medical advisers, as this will depend on a range of things such as your medical history and side-effects. As long as your GP or midwife considers that you are not well enough to work, they can sign you off sick. It might help to discuss it with your GP or talk to your midwife at your next appointment if you have any concerns about being entitled to sick leave.
I'm not sure if it helps you to plan but the earliest you can start your maternity leave and pay is 11 weeks before your expected week of childbirth and you will need to give your employer notice of the date you want to start your maternity leave and your MATB1 maternity certificate, by the 15th week before your baby is due. If you don't qualify for SMP from your employer for your next maternity leave you can claim Maternity Allowance.

@Rednaxela

If I become pregnant during a fixed term contract e.g. pregnancy occurs 1 month into a 12 month contract, what would happen? If I took maternity leave part way through the contract would I have a job to go back to?

Dear Rednaxela
You are still entitled to take maternity leave during a fixed term contract, however, if the contract is not renewed, your maternity leave will end at the end of the fixed term contract and you no longer have a job to return to. You are entitled to written reasons as to why your contract has ended and you should get further advice if you think that it was not renewed because of your pregnancy or absence on maternity leave.

You can still qualify for Statutory Maternity Pay if you meet the normal qualifying conditions. These are:

• 26 weeks continuous employment by the 15th week before your expected week of childbirth,
• employed in all or part of the 15th week before your expected week of childbirth (the 'qualifying week'), and
• average weekly earnings of at least £116 per week in the eight weeks or two months before the 'qualifying week'.

As a rule of thumb this means you need to have started your contract before you became pregnant. Once you have reached the 15th week before your expected week of childbirth and qualified for SMP, you are entitled to be paid it for the full 39 week period even if your fixed term contract has ended and not been renewed. If you don't qualify for SMP you may be able to claim Maternity Allowance.

@LadyFuchsiaGroan

I am coming to the end of my maternity leave and have informed my manager I wouldn't be returning due to child care issues. When I asked for information regarding receiving my accrued holiday pay during my maternity leave, I was informed that I was not in any way entitled to any holiday pay, even though the company maternity pack I was supplied with does state that all employees continue to accrue holiday pay while on maternity leave.

While on maternity leave I wasn't entitled to pay from the company so I had applied and was receiving maternity allowance instead. I would be very grateful for any advice on this .

Dear LadyFuschiaGroan
Providing you are an employee and you were entitled to maternity leave, you would be entitled to continue to accrue your normal annual leave entitlement. This is because employees on maternity leave are entitled to their normal contractual terms and conditions, apart from pay, and your employer has confirmed those rights in the company maternity policy. As you have resigned you are entitled to be paid for any outstanding holiday that has accrued up to the end of your notice period.

I would suggest contacting your employer again or following it up in writing outlining the above and setting out what is in their maternity policy. You can ask your employer to work out how much holiday you have accrued up to the end of your notice period and to confirm that you will be paid for your holiday now that you have resigned. If your employer does not pay you for outstanding holiday pay, you can make a claim in an employment tribunal. You must claim within three months (less one day) from the date of refusal and you will need to contact ACAS within the time limit. We have put together further information on how to take forward a dispute with your employer and how to contact ACAS which you can find here: www.mumsnet.com/jobs/maternity-leave/online-legal-clinic
I hope that helps to resolve it.

@Emeraldbridge

What a great idea, thank you! I am currently half way through a year’s maternity leave. My employer pays me a decent enhanced maternity pay. I am planning on getting pregnant again soon, partly due to age, also as I suffered from bad sickness with my last pregnancy and would prefer to be at home rather than work when that is at its worst. My contract / maternity policy does not state how long I would have to go back to work for in between to receive full enhanced pay should I be lucky enough to fall pregnant soon. What are the rules around this? Does it make a difference what I would be earning during the qualifying week?

Dear Emeraldbridge
Any enhanced maternity pay that is provided by your employer is a contractual benefit so it is up to your employer to decide on the conditions of entitlement. If the maternity policy does not say anything about length of employment or qualifying conditions, it would seem that your employer provides enhanced maternity pay to all employees regardless of length of service. You are still regarded as an employee during your current period of maternity leave so it is likely that you would be entitled to enhanced maternity pay for your next baby in the same way as for this leave.
Enhanced maternity pay usually 'tops up' your Statutory Maternity Pay so you will need to work out if you qualify for SMP for your next baby.
The qualifying conditions for SMP are:

• 26 weeks continuous employment by the 15th week before your expected week of childbirth,
• employed in all or part of the 15th week before your expected week of childbirth (the 'qualifying week'), and
• average weekly earnings of at least £116 per week in the eight weeks or two months before the 'qualifying week'.

As you don't have any dates yet it's hard to work out but if you don't qualify for SMP for your next baby you can still claim Maternity Allowance and it is likely that your employer would top it up under their maternity policy but you need to check the conditions carefully.

Firstly, thank you to all who are involved in this! What a great idea. I’ve been desperately trying to find some explanation to a work situation and it’s great to know that someone is willing to listen and give advice without extortionate fees, so thank you!

Secondly, I’d love some advice. As requested, here’s a little bit about my situation...

I’m a part time primary school teacher currently 23 weeks pregnant. I started the year as a class teacher working in Year One. I spent the summer decorating the classroom, creating resources and buying resources to engage my new class of 30. All was going well but then my job share partner resigned immediately. No attempt was made to recruit a job share partner for me and I wasn’t informed or aware of any recruitment going on for a replacement.

However, at the end of September, I received an email to my personal account, on a day I do not work, stating that as of Monday I would no longer be a class teacher. This email was sent on a Friday afternoon whilst I was in Disneyland Paris with my husband and daughter to celebrate her birthday.

The head accused me of being unprofessional for being upset about this and declared that it was because I was going on maternity leave that they decided to recruit someone full time in my place. I was also accused of being accusatory when I was asking questions about my new role. To this date I haven’t received a new job description and go day-to-day covering classes, a bit like a supply teacher would.

I hate it and I’m really miserable. It’s not wha ‘I signed up to do’ at the school and feel that I’m being discriminated against because of my pregnancy.

Is it just me or are they entitled to do this? Perhaps it just my pregnancy hormones running riot but I’d love to speak to someone about it.

Thank you x

I applied for flexible working, to commence after my return from maternity leave. My request was rejected. My company didn’t follow their own policy in terms of deadlines for replying, arranging a follow-up meeting or giving me a reason for the rejection.

I am now appealing against the rejection, and again my employer isn’t following their own (written) policy in terms of guidelines. If my appeal is rejected I will be expected to continue working full-time. If I then resign, could this be considered constructive dismissal?

I have put in a complaint as my employer haven’t followed their own flexible working procedures. Is there anything else I can do?

@TeabagTelepathy

Ive missed out on the annual pay review and bonus review whilst being on maternity leave. They also plan to demote me on my return. I understand I should still be offered my role or suitable alternative but is this correct practice?

any advice much appreciated

Dear TeabagTelepathy

Thank you for your query. You are not entitled to your normal contractual terms and conditions relating to pay whilst on leave. However, on your return to work after maternity leave your pay should take into account any pay rise you would have received if you had not been on maternity leave. Also, your maternity pay should be recalculated to reflect any such rise. In terms of a bonus, you do not have entitlement to bonuses awarded whilst you were on maternity leave except if these relate to a period when you were still working, in which case you will be entitled to a pro rata proportion of the bonus.

Following maternity leave, you have the right to return to, either (1) the same job on the same terms and conditions or (2) where there is some reason why it is not reasonably practicable for you to return to the same job (eg business reorganisation), you have the right to return to a different job which is both suitable and appropriate and on no less favourable terms &conditions. Your demotion, on the face of it, amounts to unlawful maternity discrimination.

I would suggest outlining your expectations to your employer, in terms of returning to your existing role, in line with your legal entitlement and asking them to specify what they are proposing as an alternative.

Hi hope you can help

I’m about to start ML next week and I'm concerned my manager is using it to not give me a title change and job description change that I have been requesting since April.

She returned from Mat leave herself in August, and the discussion between us has been ongoing since then. Prior to that I had been discussing it with her cover, who used it as an incentive to get me to do a lot of work beyond my job description, and an HR manager, who is now also on Maternity leave. The request seems to have fallen through the gaps and now I’m being told that they don’t usually update this kind of thing just as someone is going off on Mat leave.

I feel it’s unfair of them to say this when the conversation has been going on for so long and they’ve been dragging their feet about moving the conversation forward.

I know I should’ve applied more pressure earlier but I’ve been flat out working on the projects that were supposed to secure the title change and assumed they would make good on their word.

Please can you let me know if I have any legal recourse or options?

Thank you!

@measureformeasure

I’ve been with my employer for about two years and just found out that I’m pregnant and due next summer.

I haven’t told my employer yet as it’s just too soon. I’m concerned about the reaction I get when I do as they have “form” for discrimination. A previously well-thought of employee was forced from her job when her maternity leave ended as they “couldn’t accommodate” the hours she’d previously agreed with them. She wasn’t allowed to return to her job, ultimately. What can I do to prevent this happening to me?

Dear measureformeasure
Congratulations on your pregnancy!

Legally, you do not have to tell your employer that you are pregnant until 15 weeks before your baby is due (known as the expected week of childbirth), although it is likely to be obvious by then. At that time, you have to tell your employer that you are pregnant, your expected week of childbirth and the date when you intend to your ordinary maternity leave to start. The earliest that you can start to take ordinary maternity leave is 11 weeks before your expected week of childbirth. It is up to you to decide when you feel most comfortable telling your employer but bear in mind that you will only have effective protection against pregnancy discrimination once you've told your employer that you are pregnant.

I have understood the rest of your question to be how you can stop your employer discriminating against you because of your pregnancy, though this has not happened yet. The law protects you from any unfavourable treatment because of your pregnancy or any illness arising in consequence of your pregnancy from the beginning of your pregnancy until the end of your additional maternity leave or your return to work if that happens earlier. Unfavourable treatment can involve being treated differently to other people because you are pregnant or being treated in the same way as other people where your pregnancy is the reason for your treatment, for example, being sidelined, selected for redundancy or denied a promotion or training because you are pregnant.

If you are concerned about what might happen when you do tell your employer about your pregnancy, it would be sensible to keep a diary of events so that you have evidence of any difficulties. In the event that you need further advice, Mumsnet lists a number of advice sources www.mumsnet.com/jobs/maternity-leave/online-legal-clinic

Sorry wrong thread.....

Hi please can you help. I am currently 6 months pregnant and have issues with my boss at work. I work for a recruitment company and am expected to hire a replacement for myself!! whilst i will be on maternity leave. I have in the past worked from home, and spoke to my boss when i first told him i was pregnant and we ageeed that i can work from home by December.
Now he seems to be holding me ransom by not letting me work from home till i find a replacement. He comes in and plays games and watches movies all day and makes no effort in finding a replacement and is putting so much pressure on me at thr moment i cant bare it.
My midwife has said that my blood pressure is very high and is putting me on meds. I was also off work for a week due to a chest infection and he has not paid me my ssp. When i approached him reg this he said he didnt kno, i find this really hard to believe as he has paid me it in the past and he is in recruitment after all.
Since i told him i am pregnant, hes been really nasty to me and on my case all the time. He has also made me advertise the job as a permanant not maternity cover and i cant help but feel he is trying to get rid of me.
Please help!!!

Hi. I am a student nurse who will qualify in a month time. At the same time, I am an HCA in one of the NHS trusts working part-time, currently on maternity leave till mid-January. I will have 6 weeks of AL left to use after my maternity leave (so officially I will be back at the beginning of March). I would like to start working as a nurse in February. Can I be on AL in one trust and start working in another trust in a different position? I intend to leave my current employer after my AL and my notice period. My HR send me a message that I should not start any employment while on annual leave, which is odd, taking into account that during my previous AL I was asked to work NHSP shifts in my own trust (NHSP shifts replaced bank shift a while ago in my trust, so to work overtime I can only do NHSP which is a different contract of employment (zero contract hours). What is the regulation regarding this? What should I do? Another question is linked with my contract with NHSP - can I work extra shifts while on maternity leave - paid and unpaid part? In December I will be paid only OMP as I extended the time this payment is paid from 6 months to 10,5 months. I will receive approx. 500 GBP in December which is not enough to survive. Can I work NHSP shifts from December? WIll I stop being on maternity leave if I do? As I mentioned above it is a different contract (zero contract hours) and I am registered with them since November 2016. I will really appreciate if you can answer those questions.
Kind regards

Hello. I'm a teacher. I began working at my school part time in late Feb 2018 as a temporary employee, but was also employed to start as a permanent (part time) teacher in sept 2018. I wasn't given a contract, instead just a letter to say I was employed Feb to July 22nd (end of term). My contract begins 1st sept 2018 and states that this is the date my statutory rights are calculated from. I have no contract to cover Feb-July.

I'm pregnant, due in Early Feb. I believe I am entitled to statutory maternity leave given that I have worked there since Feb 2018. I am worried the school may try to argue I am not, and that I am only eligible from Sept 2018 onwards. My contract refers to the burgundy book for maternity rights.

Any advice very welcome.

I am an NHS Manager and have been working at the same organisation for over 10 years. I have a substantive contract which I signed in 2012 but have not been working in the role since 2015 as I have undertaken a number of secondments and acting posts. My substantive role is now several bands below my current role (Band 7 vs Band 8C).

My most recent acting post started in March 2018 and has been extended until I am due to take my maternity leave at the beginning of February. I have been told by my employer that they are likely to advertise my current role substantively while I am on maternity leave.

My queries/concerns are:

1. I had understood that the organisation were required to extend my current contract by a period of 12 months to cover my maternity leave because the end of my current contract is less than 11 weeks before my EWC, however my line manager tells me that it is unnecessary to extend my acting contract because I have a substantive contract in the same organisation. Does it disadvantage me to be contracted at a Band 7 rather than at a Band 8C when I return from maternity leave?

2. I will be at a disadvantage going through an interview process while I am on maternity leave. Is it reasonable of me to ask them to wait until I have returned to advertise this job substantively? They will also be advertising for a 1 year fixed term maternity cover so the role will be covered in the meantime.

3. If I interview and am unsuccessful, what is the responsibility of the organisation in finding me an alternative and equivalent role? Are they required to find me something at my current banding, or at the banding of my substantive role? I am working on the assumption that maternity leave should not result in less favourable treatment for me as an employee – if I wasn’t going on maternity leave there would be no expectation that I would be dropping 4 bands for my next role.

Thank you in advance for any help or advice you can offer.

@Kajmaniek18

Hi. I am a student nurse who will qualify in a month time. At the same time, I am an HCA in one of the NHS trusts working part-time, currently on maternity leave till mid-January. I will have 6 weeks of AL left to use after my maternity leave (so officially I will be back at the beginning of March). I would like to start working as a nurse in February. Can I be on AL in one trust and start working in another trust in a different position? I intend to leave my current employer after my AL and my notice period. My HR send me a message that I should not start any employment while on annual leave, which is odd, taking into account that during my previous AL I was asked to work NHSP shifts in my own trust (NHSP shifts replaced bank shift a while ago in my trust, so to work overtime I can only do NHSP which is a different contract of employment (zero contract hours). What is the regulation regarding this? What should I do? Another question is linked with my contract with NHSP - can I work extra shifts while on maternity leave - paid and unpaid part? In December I will be paid only OMP as I extended the time this payment is paid from 6 months to 10,5 months. I will receive approx. 500 GBP in December which is not enough to survive. Can I work NHSP shifts from December? WIll I stop being on maternity leave if I do? As I mentioned above it is a different contract (zero contract hours) and I am registered with them since November 2016. I will really appreciate if you can answer those questions. Kind regards

Dear Kajmaniek18

Thank you for your query. In relation to your first question about your part-time job, you need to resign from it, giving the notice period required by your contract. For example, if your notice period is one month, you should give notice of resignation one month before the end of your maternity leave in mid-January. On resignation you are entitled to be paid for any outstanding annual leave that has been accrued up to the end of your notice period. You will no longer be employed by that trust from the end of your maternity leave and it would be up to you to decide on new employment.

Based on the above there is no reason why you should need to remain employed with your current employer after the end of your maternity leave. However, just to be sure I've covered everything, it might be helpful for you to know that if you were to start a new job at any time during your current contract, you would need to check whether your employer has any restrictions on working for another employer (this seems unlikely in relation to working for different trusts but please check). Providing there is nothing to prevent you from taking another job, you can start working for a new employer. If you start working for a new employer after the birth of your baby but during your maternity leave, you can no longer receive the rest of your maternity pay. There is no reason why you cannot take annual leave in one job, whilst working for another employer. Employees with more than one job can take their annual leave at different times in each job - as you've said you've worked under your zero hours contract while being on annual leave in your main job.

In relation to your final question about your zero hours contract in which you have been registered since 2016, assuming that you were employed under that contract in the 15th week before your baby was due but did not meet the qualifying conditions for Statutory Maternity Pay for that job, you are entitled to continue to do work under that contract during your paid maternity leave without losing maternity pay and you can also continue to work under that contract without it bringing your maternity leave with your main employer to an end. You will need to check with your employer whether working NHSP shifts under another contract will affect your OMP but if they are treated as two separate jobs (in which you were employed in both in the 15th week before your baby was due) you are legally entitled to be on maternity leave and pay in one job and to continue working in the other job. One final point, you will need to check any repayment conditions in relation to OMP if you are thinking of resigning after your maternity leave. I hope that helps.

I have worked at the same company for over 10 years, progressing up through the organisation and have been in my current role officially since January last 2017, but have been on maternity leave for the last year. Whilst on maternity leave (for the second time) there have been massive changes within my company including an entire new board and my boss has left. No one contacted me during this period, I only knew what was going on as I saw my boss socially. I also saw my maternity cover socially and she asked if I was coming back to which I replied yes I fully intended to come back but I would be taking my full year plus holiday as that coincided with my ds starting school. I did not say this to anyone formally, partly because at the time I didn’t even have a line manager and I knew I didn’t have to until much nearer the time. She said she would look for a new job, which she did, and was offered one. We had a chat on the phone, discussing some of the changes that had happened, new people etc and said that the team was going to sit under a new board member who was v supportive of the work my team does. She was doing a handover with someone else in the wider team who would then handover back to me on my return. I didn’t think anything more about it until two weeks later I get a call from her telling me she was staying and her new job title was Head of my team. When I challenged her that that sounded like she was my boss, she was very quick to say no we were the same level. I was v pissed off, partly as I hadn’t been consulted at all and that it was maternity cover who told me they were staying. I wrote to my new boss saying I’d heard about the new situation and when I was coming in on one of my KIT days that I’d like to actually meet him and would be good if he could clarify the changes. He was v nice, didn’t say anything about seniority, just that it was good to have more resource and wanted us to work together well and thought we could achieve great things! He said in retrospect he probably shouldn’t have got my maternity cover to tell me about the change. Since then I went in for several kit days which were useful. My maternity cover presented me with a slide about who could do what, I said it looked like the variety within my role had changed (one of the things I liked most) which I wasn’t happy about but that we didn’t need to decide anything till I was back. I also attended a conference where she was the one giving presentations on what our team would be doing. Obviously I wasn’t back at work then, but it did lead to some interesting conversations with both new/old colleagues as to what my role was. Since then I have returned to work, have very little to do, as there has been no handover, and she can’t fit me in for a while (she’s v busy and important). Interestingly in one meeting with another colleague she was congratulated on her promotion which she thanked them for. All this leads me to believe that she is more senior than me but nobody dare actually say it as no one communicated anything to me about it whilst I was off, or if there was a promotional opportunity I wasn’t made aware of it. I can see that she sits on the new leadership team, which I don’t, and so far no one has mentioned that, despite me being on the old SMT. It also looks like I no longer have any line management responsibility, despite the junior person in our team who I used to manage is still there. And she has openly said she is managing the two new people being recruited. There have been a few other instances, including hr procedural things which I have submitted to my line manager and she has responded to. I am so annoyed and upset that I’ve worked so hard to establish myself in this company and feel like I’ve been demoted whilst not there to show my skills and experience. I know exactly what her skills were as I recruited her!
I’d like some advise on how to handle the meeting with her next week. I think I just want to ask her outright whether she is more senior to me. If we can work together then this situation could be better for me, I need more flexibilty to work from home etc and I could get that from staying at this company rather than looking for that elsewhere. I want the situation clairified as I really don’t feel like anyone is being honest with me. The final factor is that she was recruited as my maternity cover for 5 days a week, whereas I only do 4. My boss at the time recognised that we needed more resource as the workload was increasing (although waited till I was going off to actually do anything about it). I don’t think I should be penalised for this, I came back from my last maternity and achieved pretty much what I did in 5 days previously in 4. I do wonder if this is going to come be a reason for them saying she is more senior than me, but again they made the decision to make her permanent whilst I was off, and didn’t know what hours I wanted to work on my return.
This is a very long message but would appreciate some advice. From speaking to friends this has happened to a number of them, and they have all ended up going down the legal route for discrimination.

@NordicNoirRocks

I applied for flexible working, to commence after my return from maternity leave. My request was rejected. My company didn’t follow their own policy in terms of deadlines for replying, arranging a follow-up meeting or giving me a reason for the rejection.

I am now appealing against the rejection, and again my employer isn’t following their own (written) policy in terms of guidelines. If my appeal is rejected I will be expected to continue working full-time. If I then resign, could this be considered constructive dismissal?

I have put in a complaint as my employer haven’t followed their own flexible working procedures. Is there anything else I can do?

Dear NordicNoirRocks,

Much depends on whether your employer's flexible working policy is a contractual policy meaning that they are obliged to "follow it to the letter" or non-contractual. The majority of policies are non-contractual, entitling the employer to depart from their policy in certain circumstances.

Under the relevant legislation, assuming you have the right to make a written flexible working request, your employer has a 3 month period to consider your request, discuss this with you if appropriate and deliver their outcome. Your employer can only refuse your request based on eight reasons set out in the legislation, such as the burden of additional costs or detrimental impact on performance. I suggest that you have a look at the Acas Code of Practice and Guidance concerning flexible working requests for further information: www.acas.org.uk/media/pdf/f/e/Code-of-Practice-on-handling-in-a-reasonable-manner-requests-to-work-flexibly.pdf

If your appeal is rejected and you are able to demonstrate that your flexible working request was not dealt with fairly or properly, for example if they do not provide you with any reason for rejecting your request, you could bring a claim in the Employment Tribunal. This claim would need to be brought within 3 months' of your employer delivering its decision and you would need to contact Acas within this time limit. Compensation awarded for claims that the employer has not followed the correct process would be capped at 8 weeks' pay (at the statutory maximum of £508 pw).

If your employer has a legitimate reason for refusing your flexible working request, it would be very difficult for you to resign and bring a constructive unfair dismissal claim. These claims are notoriously difficult to prove. If your employer refuses your request and you are forced to resign for childcare reasons, it may be indirect sex discrimination if your employer is unable to objectively justify their refusal. This usually means that they need a good business-related reason for refusing your request. I would suggest that you take some further legal advice once you have received the outcome of your appeal. We have put together some information on sources of further free advice here: www.mumsnet.com/jobs/maternity-leave/online-legal-clinic

I’m an assistant at a very large international Partner led firm. I have been told I cannot go part time on my return to work after maternity leave as the Partners don’t like it. They have not been willing to consider options such as job shares etc and the only flexibility they can give is to work from home one day a week. Can they legally do this? I can’t go back full time so will need to leave and try to find a new job.

@DorothyMantooth

I have been in my current job for 19 months and am expecting my second child, due in February 2019. I work in a very niche area within my organisation - I am the only person working in my area, which is very lucrative, and some months ago it was agreed with senior management that a junior person would be hired to support me in my role. There has been a lot of upheaval in my organisation recently, and my previous line manager resigned at the same time that I announced my pregnancy. Shortly afterwards, two new senior Directors joined the organisation. They have instigated significant changes and whilst they seem enthusiastic about my area of work they have little understanding of how it works. There has been a lot of discussion as to how to cover my maternity leave, with my view being that the person who was being recruited to support me would be able to cover whilst I was away. However, after several months I was informed that this support position was being cancelled and that my maternity leave would be covered internally. Separate to this discussion we have also been discussing my position within the organisation. Since I joined the organisation, I have been very successfully carrying out a more senior role than intended (this can be evidenced through financial performance) and since colleagues on a similar grade have had their positions improved as part of the recent changes, I had asked that such a promotion could be considered for me when I return from maternity leave. This was initially rejected although later it was agreed that the more senior position (which I am already unofficially carrying out) would be created - it would be a new position within the organisation - but it would be externally recruited. I was not happy with this position because other staff have been given new positions without external competition, but I was informed that although those colleagues had new job titles there was not external competition because their new roles were an extension of their previous roles rather than an entirely new role. This is the exact same position for my current role and the proposed new role - I am already carrying out 95% of the responsibilities of the more senior role. However, I decided to leave the discussion at that until I returned from maternity leave. After having found and started training an internal maternity cover, two weeks ago I was informed by the new Directors that they had decided to externally advertise the maternity cover position. Since time is now running out for the recruitment, there is now a very strong possibility that we will not be able to recruit anyone in time for me to hand over to them before I leave at the end of January. Moreover, they had decided to recruit someone on my exact job description. I was also informed that they had changed their minds about the more senior position which I had been discussing with them. They have decided that this position will definitely be created and will be advertised this time next year (when I will still be on maternity leave, and will have been off for about 7 months). One of the directors told me that they hoped that the maternity cover person would also apply for the job, as this would show that they have ambition. I feel that I am now recruiting my replacement in more ways than one. I cannot help but feel that the maternity cover, who will have the same skills and level of experience as me, and will be actually in the job when they apply for it, will stand a better chance of getting the more senior position than me. I will have been away from the job for some time, and feel that will not be in the right frame of mind for applying or interviewing for a job whilst I am on maternity leave. I am also very resentful that the organisation can put me in a position where I essentially have to compete for my own job when I should be focused on my baby. I understand that they will argue that I have the choice not to apply, and that my role (the more junior one) will still be there for me when I return. However I cannot imagine returning to work to a job which I have built up from scratch, to work under someone else (and potentially the person I hired as my maternity cover). I therefore feel that I will have no choice but to do the application and interview whilst on maternity leave, and this is causing me a great deal of anxiety and resentment. I feel that the directors are taking advantage of the fact that I am going on maternity leave and therefore don't have a strong hand in negotiations, and that I am being treated differently to other colleagues who are not pregnant. I have a meeting scheduled with the director with whom I get on best next week with the aim of discussing these issues face to face - I work remotely and most of the previous discussions have been over the phone. Could you give me some advice on my rights so that I can be clear when I have this discussion? Specifically, I would like to know whether it is acceptable for them to advertise the senior role whilst I am on maternity leave and also whether it is acceptable for them to treat me differently than other colleagues in the extension of my role (external competition rather than promotion/job title change). Many thanks - apologies for the long message!

Dear DorothyMantooth,

Many thanks for your query and please don't worry about the length, there was clearly a lot to get down.

To try and simplify this as best I can:

1. you have the right to return to your current role on the same terms and conditions as you previously enjoyed.
2. your current role is not simply what is on a job description or contained in your employment contract, but the role you have been undertaking in practice prior to going on maternity leave.
3. if, as you say, the more senior role the company envisages comprises 95% of what you're currently undertaking, there is a strong argument that you should be entitled to undertake this role on your return. Bar 5% it will effectively be your old role in all but name.
4. if in creating this more senior role they make your old role redundant (which I assume they would have to as it would leave little or nothing of your old role left) then you will have an automatic entitlement to be appointed to this new role as a suitable alternative position.
5. the company has the right to advertise externally for your temporary replacement. However it would be reasonable to expect they find someone in sufficient time to allow for an orderly handover;
6. there is little you can do to force the timing on advertising the new more senior role. If they have a sound business reason for doing this whilst you are on maternity leave they will be able to do so;
7. if you have a strong factual basis for arguing that their approach to you and your role is less favourable from others in the same position and this would appear to be because you are going on maternity leave, then this will comprise a claim for maternity related discrimination. This will obviously be fact sensitive and it will be a matter for the organisation to explain the distinction between these cases.

My suggestion for when you meet the director is to be in a good position to demonstrate that 95% of what you're doing currently will be what the new more senior role comprises. Being able to demonstrate this with hard examples of your duties compared to those in the new role will be key. The company, if they do try to argue their position, will likely seek to distinguish the two roles and suggest that the more senior role is very different to your current role.

You should also be in a good position to use the examples of other cases where this has simply resulted in an immediate promotion. This will then allow you to demonstrate that departing from this practice in your case can only be because you're going on maternity leave and this is unlawful.

You might also make it clear at the meeting that if the new role is created whilst you're off, you will be legally entitled to be provided this new role on your return given that it comprises your current role in all but name. It would therefore surely make more sense to announce the promotion now, hire maternity cover for your new role, and then have you return to this role when you come back from maternity leave.

I hope this gives you a clear framework to proceed from.

Hello, I am currently on maternity leave.
I have decided to take the full 52 weeks' allowance and the latest date I can return to work is 21 Jan 2019.
I have accrued 31 days of holiday for 2018 (my annual leave entitlement runs Jan-Dec).
My question is this: Can I tag my 2018 unused annual leave entitlement onto the end of my maternity leave - ie on paper return on 21st Jan, but then take 31 days of annual leave and return to work in March?
Many thanks

Hi there, great idea!
I have a pension question. During my year of mat leave (2017) I noticed recently that I hardly had any contributions into my pension account. A bit of research leads me to believe that my company should’ve continued to pay the % they usually pay based on my salary pre-mat leave (for the 39 weeks I was on SMP). Is this correct? Accounts tell me they didn’t put in any contributions during that year but I think they should’ve been paying as normal, but my contributions would have reduced as it would just be a % on a much smaller income?

I'm on maternity leave. Am I allowed to do some private work whilst I'm on maternity leave? My employers know this is my intention and haven't raised any objections but someone has recently told me I shouldn't be doing this. Are they right?

Thanks

Hi - great thread. I wondered if you could give me a view on what the position is for eligibility for employee options to be granted whilst on mat leave? I work for a private company where employees are given options that are granted over a 3 year period at monthly intervals (ie 1/36 of the entitlement per month). These are not discretionary - they are based on being employed, and the option documentation is silent on the impact of things like being off on sick leave, mat leave.

Would these be paid as normal whilst on mat leave? Or do I lose that entitlement? Many thanks in advance!