MNHQ here. FREE legal advice clinic from Maternity Action about pregnancy, maternity or parental issues at work

[AnnaCMumsnet]

Mumsnet and Maternity Action are teaming up once again to provide an online legal clinic, offering free advice on pregnancy, maternity and parental rights at work from volunteer employment solicitors and barristers who are members of the Employment Lawyers Association.

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, and on Mumsnet's Talk forums, the topic of employment rights is a hardy perennial. The clinic will respond to this demand in a hopefully innovative way, providing free, accurate, public advice online and raising awareness of parents' rights at work. It will also enable Maternity Action and Mumsnet to identify trends and produce permanent content to address areas in which employers and workers could benefit from clear, upfront guidance.

The clinic will take the form of a 'Q&A' session on this thread, with members of the public posting questions about their employment rights dilemmas relating to pregnancy, maternity and parental rights at work on a dedicated public discussion thread. Specialist solicitors and barristers will take necessary additional detail via private messaging before posting up answers and advice.

The clinic will run for a week from Monday 11th to Friday 15th November and will be held on a quarterly basis. We will do our best to provide all answers during the week but, at the latest, by the Monday of the following week. You can find information on where to go for more help once the clinic has ended here.

What to do if you’d like to post a question:

1. If you have a question about your rights at work during pregnancy, maternity or parental leave please post it online during the week of the clinic. Please give as much information as possible but remember that this is an online forum and can be viewed by the public – including your colleagues and employer. You can use the private message facility to disclose any information you would prefer to keep off the public forums.
2. Please send your name and the name of your employer by private message to MaternityActionfreeadvice so that it can be passed on to the volunteers to do a conflict of interest check. We cannot post a reply until you have sent this information by private message.
3. Once your advice has been posted online, you will have an opportunity to provide feedback. This helps us to find out whether you found the advice helpful, whether it helped you to resolve your situation at work and some information about you. All survey responses are anonymous and confidential. Providing feedback will help us to see what improvements can be made in developing this type of online free legal advice clinic. You can fill out the survey here.

Ts and Cs – please read
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 suggested here.

Mumsnet, Maternity Action and Maternity Action's volunteers 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.

The lawyers, all of whom are specialists in employment law, will be working as volunteers for Maternity Action in respect of the clinic. Any personal information collected as a result of the clinic will be held by Maternity Action and will be deleted after 18 months. If you wish to make a complaint about the service you received, you can use Maternity Action’s complaints policy here.

[Phoenix85]

From the moment I was pregnant I had an issue with my employer. It was resolved, but not in their favour. They didn’t want to set a precedent by paying me for being sick.
Throughout my pregnancy I attended normal appointments&went on leave the day I was induced. I returned to work 10 weeks later.
I wrote&asked for flexible hours&work from home. Was told it was fine. (Verbally)
Now 7 months later I’m being told it’s not.
I’m fairly sure now that I’m a working mum im seen as a nuisance. It’s a small company. No HS in place until I wrote it up.
Really do I have any protection?? Or would it be virtually impossible to prove they are constructively dismissing me?

[Louise2019]

Prior to maternity leave I was contracting, therefore I have a 12 month gap (so far) on my cv and as such have to explain why I’ve been out of work for so long. I’ve been honest and said that I’ve been on maternity leave. I was recently verbally, and via text, offered a part time job following two interview on the condition that I just had to “meet” the CEO before a formal offer would be made. The meeting was actually an intense interview after which the CEO said they would not offer me the position as I “was only able to do part time hours”. During the meeting with the CEO I had discussed the possibility of the demands of the role increasing and I had stated that if the role became full time I would like to remain in the position. I suspect that the real reason for rescinding the verbal offer is because I am a woman of child bearing age who has recently had a baby. The position has now been re-advertised with a different job title but the same job description and still part time. Do I have a case for discrimination? All discussions of the role were via an agent and are on text message. Thank you

[Quail15]

Prior to going on maternity leave I was aware that there maybe some changes with in my team although this was not confirmed. I work for the NHS and have had an odd email here and there about these changes whilst on may leave but no formal consultation. I was working mon-fri 9-5 but it was verbally agreed that I could reduce my days when I return.

However I have been told in an email that my post no longer exists and they want me to work 3 or 4 12 hrs shifts a week. I have advised them that due to nursery only being set days and closing at 6pm I am unable to work constantly changing shifts. I was asked to submit a flexible working request which I have done but I have been told they are yet to even look at it (I return to work in January) and that there is no guarantee my request will be accepted. To be honest I'm not really concerned about my change in role but I am not happy about my change in working hours.

What are my rights with regards to my job being completely changed whilst on maternity leave without any formal discussion/letters/consultation?

Do I need to escalate my concerns to HR or involve my union at this stage?

[RowanMumsnet]

Hello @Phoenix85h @Louise2019 @Quail15 - if you haven't already could you please PM the Mumsnet user MaternityActionfreeadvice with your name and the name of your employer? This will go straight to the Maternity Action team and is just so that the solicitors can check they don't have a conflict of interest - they can't reply until they have this information. Thank you. (Will edit the OP now to make that clearer!)

[RowanMumsnet]

(Just to be clear, please don't PM AnnaCMumsnet - the OP of this thread - she's not working during the early part of this week and so can't see your messages, and anyway it's best if your personal info goes straight to the people who need it, so please PM MaternityActionfreeadvice with the details.)

[Louise2019]

I’ve replied to the inbox message twice but my reply is not showing in my inbox, can you check this please @rowanmumsnet

[RowanMumsnet]

@Louise2019

I’ve replied to the inbox message twice but my reply is not showing in my inbox, can you check this please *@rowanmumsnet*

Hi Louise - really sorry, we led you up the garden path a bit. Rather than replying to AnnaCMumsnet (who posted the OP) we need you to send a PM directly to MaternityActionfreeadvice - if you open the personal messages page on Mumsnet and just type that name (MaternityActionfreeadvice) into the 'to' field and add the info in the body of the message, it should go to the right place. We can't retrieve the other messages you've sent until Anna comes into work later on this week, so it will be quicker if you can do it this way.

Very sorry for the confusion.

[MaternityActionfreeadvice]

Dear Louise2019
The Equality Act 2010 prohibits discrimination on the grounds of nine protected characteristics, one of which is pregnancy and maternity, and another is sex/gender. These rights apply not only to employees but also to job applicants, meaning that you would be protected by the Equality Act in the scenario you have outlined below. You have mentioned that you believe that the formal job offer you were promised never materialised because the prospective employer believed you may go on to have another baby and take further maternity leave. The reason you were given (via text message) is that you were “wedded” to part-time working. Both of these reasons could in fact amount to sex discrimination under the Equality Act. A refusal to offer a role to someone due to a commitment to part-time working might (unless justifiable) amount to indirect sex discrimination, if the reason for the need to work part-time is due to childcare; this is because more women generally take on child-care commitments when compared to men. Your query does not give full details of your maternity status, however as pregnancy and maternity leave is limited to specific timelines and events, I believe sex discrimination is the more relevant claim for you in this scenario.

You would need to be able to evidence the reason why you were not offered the role. Based on what I have seen, the evidence looks fairly strong. Firstly, the role (I think) was advertised on a part-time basis, and is being advertised on this basis again. It is therefore strange not to offer the role to someone specifically because she wishes to work part-time. Secondly, the text message exchange is clear that you were going to be offered the role subject to meeting the CEO. Thirdly, you stated in the interview that you could essentially work full-time if needed with a few adjustments. In addition, even if you are not able to prove that the reason the formal offer never arrived was due to another possible pregnancy, you have written confirmation that you were not offered the role due to part-time working, which as mentioned above can in itself amount to sex discrimination (in reality both factors could have played a part in the decision making).



If you wish to pursue this matter further the next step will be to get in touch with ACAS to start pre-claim conciliation. ACAS will contact the company to notify them of a potential claim and the company will then have to decide whether to enter into settlement negotiations with you. If the matter is not settled via ACAS, you will receive a certificate from ACAS which you need in order to bring Employment Tribunal proceedings. You can find more information on how to pursue it here: maternityaction.org.uk/where-to-go-for-more-help/

@Louise2019

Prior to maternity leave I was contracting, therefore I have a 12 month gap (so far) on my cv and as such have to explain why I’ve been out of work for so long. I’ve been honest and said that I’ve been on maternity leave. I was recently verbally, and via text, offered a part time job following two interview on the condition that I just had to “meet” the CEO before a formal offer would be made. The meeting was actually an intense interview after which the CEO said they would not offer me the position as I “was only able to do part time hours”. During the meeting with the CEO I had discussed the possibility of the demands of the role increasing and I had stated that if the role became full time I would like to remain in the position. I suspect that the real reason for rescinding the verbal offer is because I am a woman of child bearing age who has recently had a baby. The position has now been re-advertised with a different job title but the same job description and still part time. Do I have a case for discrimination? All discussions of the role were via an agent and are on text message. Thank you

[Mama2MooNoo]

I am due to return to work in the next few months and have been contacted to arrange a meeting.
I work on a part time basis 5 mornings a week. My hours are 830-1300 on my contract however my manager agreed that to allow me to collect my child from nursery (by 1pm or there is a late charge) I could work 800-1230. I worked this way for three years before commencing maternity leave to have my second child.
I have been told that management are keen for me to change my working hours.
I wish to remain working exactly how I was as this allows me to collect my child from nursery then my older child from school.
Changing these hours would either require my daughter attending nursery for full days and my other one having to attend after school clubs. I chose my current working pattern to ensure I could spent time with them in afternoon/evening, cook them dinner/help with homework etc.
It was also result in an increased childcare spend.
Can I be forced to change my working pattern? Either to what is on my contract away from what was verbally agreed and in place for three years, or to completely change my hours from what is contracted (ie three whole days/longer days or similar)
Many thanks

[MaternityActionfreeadvice]

Dear Mama2MooNoo

It is quite common on return from maternity leave for the employee to seek a change to their working hours. I understand that in your case you are happy to return on the same basis that you were working before you went off but that you anticipate your employer is going to ask you to change your working pattern.

Sometimes the contract of employment (which governs the working relationship) will contain a clause permitting the employer to change the employee’s working hours, so it is worth first taking a look at your written contract if you have one. Even if that clause does exist, the employer should exercise that right ‘reasonably’.

In order to change your contractual working hours your employer should seek your consent. You are entitled in the discussion to explore with them why they are seeking an increase in your hours and whether anybody else is being asked to increase their hours too. I would also recommend that you highlight to them that the reason you work the hours you do are to accommodate your childcare responsibilities and that this arrangement has been in place for 3 years.

You are entitled to object to a proposed change in working hours. Some employers might choose in that situation to ‘force the change’, which would amount to a breach of contract and might result in your resigning if you cannot work to the new hours. Other employers may choose to ‘dismiss and re-engage’, which is where they argue the change to working hours is so important business wise and serve notice to the employee and then offer them the new working pattern.

It would be open to you in any of those situations to raise a formal grievance about the situation. If your employer is suggesting that they have a pressing business need for you to increase your hours then I think they should be challenged on this carefully – your role is clearly capable of being done part time, as it been done on that basis for the last 3 years. If something has changed internally or operationally they might be making a reasonable request of you. However if they just want you to increase your hours but without any explanation as to why the current arrangement is not working then I think there may be scope for complaint.

I would attend the meeting to see what they are proposing and to explain to them that your working pattern works for you and your childcare situation and that you have no wish to vary it.
I hope that helps and please see our info sheet for further help: maternityaction.org.uk/where-to-go-for-more-help/

@Mama2MooNoo

I am due to return to work in the next few months and have been contacted to arrange a meeting.
I work on a part time basis 5 mornings a week. My hours are 830-1300 on my contract however my manager agreed that to allow me to collect my child from nursery (by 1pm or there is a late charge) I could work 800-1230. I worked this way for three years before commencing maternity leave to have my second child.
I have been told that management are keen for me to change my working hours.
I wish to remain working exactly how I was as this allows me to collect my child from nursery then my older child from school.
Changing these hours would either require my daughter attending nursery for full days and my other one having to attend after school clubs. I chose my current working pattern to ensure I could spent time with them in afternoon/evening, cook them dinner/help with homework etc.
It was also result in an increased childcare spend.
Can I be forced to change my working pattern? Either to what is on my contract away from what was verbally agreed and in place for three years, or to completely change my hours from what is contracted (ie three whole days/longer days or similar)
Many thanks

[Unicornhamster]

I worked part time on a 23 hour contract for a local authority, whilst on maternity leave my sector was closed down and re-structured under a charity with all staff tuped over. The re-sturcuture meant job cuts and mine role went from three people across the borough to one. I was asked to competitively interview for the role that was slightly different in title and duties but about 75% my original role. When I asked about maternity right my new employer said they had a duty to the other two people in my redundancy pool to interview for the job and get the right person.
I couldn’t go to my interview as one of my twins got sick, they then asked for a consultation were they offered to defer the process until I come back from maternity or I still had to interview that week.

I was getting messages from other members of staff saying that the other candidates weren’t happy that I hadn’t gotten on with the process and they have families and were worried about their jobs. In the end I opted for voluntary redundancy as I didn’t feel I could interview fairly (have been on mat leave for 8 months) against the others and felt pressured not to defer the whole process further for the other candidates.

A lot of people I have spoken to have said the job should have been offered to me at the first instance and none of this should have happened, ACAS thought the same. The new employers HR rep told me the same but their lawyers said because of the wording (it’s not a vacancy) I had to interview like everyone else. I am so confused, and gutted I have given up my job.

[Mangopassionfruit]

I am currently maternity leave cover on fixed term contract due to end on 31st March 2020. I am pregnant and due May 2020. I know I qualify for SMP which my employer has confirmed which is great but just wondering about my rights in terms of them continuing my employment.

Before I told them I was pregnant they kept telling me how much they wanted to keep me but that has clearly stopped since I have told them. After doing some research it looked like they have to offer me any alternative vacancies because I will be going on mat leave (which I could technically start on/before my contract end date). There is definitely at least one vacancy as one person who is on mat leave and due to come back when my contract ends isn’t coming back. But there are two of us in the same role as 2 people from same role went on mat leave at same time and both our contracts are up for at the same time. So I am just wondering about this.

I am quite worried as our mortgage is due for renewal 4 months into my mat leave and so if I am technically unemployed it’s going to be really hard to renew or get a good rate as we are reliant on both our salaries. This wouldn’t be an issue if I wasn’t pregnant and going on mat leave so I was just wondering if I had any rights.

Hope this makes sense! Thank you!

[Heretodaygonetomorrow1]

I’m currently 30 weeks pregnant and have been subject to sexist and discriminatory language at work. I’ve been to managers who have suggested mediation which I have refused. I have now been sent a grievance form. I’m reluctant to go down this route due to foreseeing my life will be made difficult by the Male colleague. I don’t know if this is something that I can get advice about on here? Thanks

[SPLconfusion]

Hello, I am trying to figure out the process for taking shared parental leave but I am getting conflicting advice regarding us both taking enhanced pay from our employers and how that relates to SMP. The below is a bit long, sorry, but trying to give you all the context.

My employer pays 18 weeks of enhanced maternity pay/parental leave (full salary). My husband's employer pays 16 weeks of enhanced maternity leave/parental leave (full salary) which he is entitled to according to their policy as part of shared parental leave.

My plan had been to take 18 weeks of enhanced pay followed by 21 weeks of SMP, followed by a month of annual leave and then return to work.

My husband wanted to take 2 weeks of paternity leave when our child is born, followed immediately by 4 weeks of shared parental leave. So 6 weeks fully paid (2 weeks paternity leave and 4 weeks of enhanced pay).

It is very difficult to get in touch with his HR department, they have an online portal that we sent a request to several weeks ago with questions in but haven't had an answer from. Someone attached to the HR team has said that his 16 weeks entitlement is completely separate to my 18 weeks entitlement ie what my employer pays me has no impact on what his employer pays him, but they are not across the ins and outs of the policy and this isn't an official HR dept answer.

However when I spoke to my HR department on the phone they said that we wouldn't be able to both take enhanced pay because it is inclusive of SMP. And so if I took 18 weeks of enhanced pay and then 21 weeks of SMP and my husband took 4 weeks of enhanced pay then together we would be taking 43 weeks of SMP which is more than the 39 allowed.

So my questions are:
Is enhanced pay always inclusive of SMP? Ie might my husband's employer's policy not be inclusive of SMP?
If enhanced pay is always inclusive of SMP is there anyway my husband or I could claim for 4 weeks of enhanced pay minus the SMP or do we have to forfeit the entire 4 weeks salary?

For additional context someone I work with has just come back from maternity leave and she took 18 weeks enhanced pay + 15 weeks SMP and her partner took 6 weeks enhanced pay + 6 weeks shared parental pay which, if it's inclusive of SMP as my HR dept says, would mean they used 45 weeks of SMP, but this doesn't seem to have been an issue.

I am the higher earner so I wouldn't want my employer to cut 4 weeks of my enhanced pay.

It doesn't surprise me that take up of shared parental leave is so low, the rules around it seem very unclear, and I haven't been able to find any proper policy around the above question despite hours of googling!

Thanks very much

[Fluffyface19]

Hi,
I returned to work full time after 8 months mat leave. I returned to the same role but i’m field based and my territory was changed (by approx 80%) without any consultation. My mental health has deteriorated ( i’m now unfit for work, on medication and having therapy)and work have now sacked me on a gross misconduct charge. I have worked for the company for almost 5 years with no prior disciplinary issues. I’d like to find out if there is any case to bring against the company. Obviously money is an issue and I don’t want to get charged the earth just to see if there is anything I can do! Could you advise of a solicitor with reasonable fees who would look at my case?

[MaternityActionfreeadvice]

Dear SPLconfusion

Thank you for your enquiry which I will do my best to clarify.
The statutory scheme (the minimum an employer must provide by law) says that a woman can transfer up to 50 weeks of her maternity leave (52 week period) and up to 37 weeks of her maternity pay (39 week pay period). Some of the confusion about SPL is because leave and pay can be different lengths - the last 13 weeks is unpaid leave.

If you are planning to take 39 weeks of your SMP, there is no statutory pay left for your partner to take. Your employer is topping up your SMP for the first 18 weeks to the enhanced level provided under your contract. If you curtail (shorten) your SMP period by 4 weeks, you can transfer those last 4 weeks to your partner to take as Statutory Shared Parental Pay and he is entitled to have it topped up by any enhanced pay provided under his employer's contract.

You are, in effect, shortening your SMP period, so you are only losing the last four weeks of SMP paid at the flat rate of £148.68. This means that your pay period will end 4 weeks earlier, at week 35. You can either take 35 weeks' paid maternity leave, plus 4 weeks' unpaid maternity leave and then book your annual leave or just take 35 weeks' paid maternity leave, followed by annual leave. You will then be due to return to work.

If you curtail your SMP by 4 weeks (to end at week 35), your partner can book those four weeks as SPL whenever he chooses in the year from your baby's birth and he would be entitled to Statutory Shared Parental Pay for those four weeks (£148.68) topped up by his employer to any further pay that is provided under his contract. He needs to check his contract carefully because some shared parental pay policies make a further deduction for paid leave taken by the mother (sorry to confuse things further but you need to read the small print carefully).

It is possible that your colleague and her partner benefitted from a greater amount of paid leave as a result of the complexity of the SPL system or because her partner's employer was not concerned about how much SMP had been used up. Although employers must ensure that you and your partner receive a minimum of 39 weeks statutory pay between you, they can provide contractual rights that are more generous than the legal minimum. If you take the full 39 weeks of maternity pay and then return to work, you still have 13 weeks of maternity leave to transfer to your partner. Your partner's employer might be willing to pay for those weeks (which would otherwise be unpaid leave) under their shared parental pay policy even though you've used up the full 39 weeks' statutory pay. This may be what happened to your colleague but it may also have been paid by mistake.

In order to help you to plan in advance, I suggest that your partner writes to his employer stating that you intend to take 39 weeks' maternity pay and to curtail your maternity leave by 4 weeks (or however many weeks of untaken leave you have left). He should state that he would like to book 4 weeks' SPL on xxxx dates and he would like to know if he is still entitled to full pay under their policy.

If their policy is based on the statutory scheme the employer can refuse on the basis that you must curtail your maternity pay period by 4 weeks, thereby ending it at 35 weeks, not 39 weeks, in order to create 4 weeks' paid leave for him. However, they have the option to agree to provide an additional 4 weeks' paid leave for him if they are willing to give their employees a more generous contractual scheme. If your partner's employer is not responding, you will have to rely on the statutory scheme which will require you to curtail your SMP period by 4 weeks to transfer to your partner. This will mean returning to work 4 weeks earlier unless you want to take some unpaid leave.

I hope that helps!

@SPLconfusion

Hello, I am trying to figure out the process for taking shared parental leave but I am getting conflicting advice regarding us both taking enhanced pay from our employers and how that relates to SMP. The below is a bit long, sorry, but trying to give you all the context.

My employer pays 18 weeks of enhanced maternity pay/parental leave (full salary). My husband's employer pays 16 weeks of enhanced maternity leave/parental leave (full salary) which he is entitled to according to their policy as part of shared parental leave.

My plan had been to take 18 weeks of enhanced pay followed by 21 weeks of SMP, followed by a month of annual leave and then return to work.

My husband wanted to take 2 weeks of paternity leave when our child is born, followed immediately by 4 weeks of shared parental leave. So 6 weeks fully paid (2 weeks paternity leave and 4 weeks of enhanced pay).

It is very difficult to get in touch with his HR department, they have an online portal that we sent a request to several weeks ago with questions in but haven't had an answer from. Someone attached to the HR team has said that his 16 weeks entitlement is completely separate to my 18 weeks entitlement ie what my employer pays me has no impact on what his employer pays him, but they are not across the ins and outs of the policy and this isn't an official HR dept answer.

However when I spoke to my HR department on the phone they said that we wouldn't be able to both take enhanced pay because it is inclusive of SMP. And so if I took 18 weeks of enhanced pay and then 21 weeks of SMP and my husband took 4 weeks of enhanced pay then together we would be taking 43 weeks of SMP which is more than the 39 allowed.

So my questions are:
Is enhanced pay always inclusive of SMP? Ie might my husband's employer's policy not be inclusive of SMP?
If enhanced pay is always inclusive of SMP is there anyway my husband or I could claim for 4 weeks of enhanced pay minus the SMP or do we have to forfeit the entire 4 weeks salary?

For additional context someone I work with has just come back from maternity leave and she took 18 weeks enhanced pay + 15 weeks SMP and her partner took 6 weeks enhanced pay + 6 weeks shared parental pay which, if it's inclusive of SMP as my HR dept says, would mean they used 45 weeks of SMP, but this doesn't seem to have been an issue.

I am the higher earner so I wouldn't want my employer to cut 4 weeks of my enhanced pay.

It doesn't surprise me that take up of shared parental leave is so low, the rules around it seem very unclear, and I haven't been able to find any proper policy around the above question despite hours of googling!

Thanks very much

[Thinkythonk]

I am going on maternity leave in January and will be taking the year. My annual leave year also runs from Jan to Jan.

My employer have told me that I will only accrue 25 days annual leave whilst I am on maternity leave. When I have queried this I was told that the bank holidays would make up the rest, even though I am not going to be in work to have the bank hoidays off.

Is this correct? I know the law is unclear on whether I accrue bank Holidays and I haven't asked for these, but I thought my employer had to allow me the minimum 28 days whilst on matenrity leave.

[SPLconfusion]

Thank you for the advice, that's very clear and helpful!

[MaternityActionfreeadvice]

Hello,

You accrue holiday in the normal way on mat leave so should be 28 days.

Women on maternity leave continue to accrue their statutory paid annual leave entitlement under regulations 13 and 13A of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998), currently 5.6 weeks, and any contractual entitlement they may have in excess of this, during both OML and AML.
Annual leave cannot be taken during maternity leave and the employer must therefore allow the employee to take her full holiday entitlement outside her maternity leave period (Merino Gomez v Continental Industrias del Caucho SA (C-342/01) [2005] ICR 1040 (ECJ).

A period of maternity leave will frequently span two leave years and it is not always possible, or convenient, for a woman to use up her current year's annual leave entitlement before she starts maternity leave. Alternatively she may return from maternity leave with insufficient time to enable her to take the balance of her accrued holiday before the holiday year ends.
The ECJ has ruled that that the combined effect of the Working Time Directive (2003/88/EC) (WTD), Pregnant Workers Directive (92/85/EEC) (PWD) and Equal Treatment Directive (2006/54/EC) (ETD) is that member states must ensure that employees can take their statutory annual leave at a time other than their maternity leave. The court held that this applies not only to the four weeks' leave guaranteed by the WTD, but to any greater statutory leave entitlement under national law. (Merino Gomez v Continental Industrias del Caucho SA (C342/01) [2005] ICR 1040

Compulsory holidays as part of the statutory leave. Many employers who only give their employees the minimum 5.6 weeks' holiday required by the WTR 1998 include bank holidays and any other compulsory shutdown periods in that allowance. In such cases, the law is clear: time off in lieu of the compulsory holiday period must be given on return from maternity leave (or before maternity leave starts), so as to ensure the employee has the full 5.6 weeks' holiday entitlement, and carry-over to the next holiday year may be required. There is no possibility of treating the holiday as being taken concurrently with maternity leave (see Merino Gomez).

@Thinkythonk

I am going on maternity leave in January and will be taking the year. My annual leave year also runs from Jan to Jan.

My employer have told me that I will only accrue 25 days annual leave whilst I am on maternity leave. When I have queried this I was told that the bank holidays would make up the rest, even though I am not going to be in work to have the bank hoidays off.

Is this correct? I know the law is unclear on whether I accrue bank Holidays and I haven't asked for these, but I thought my employer had to allow me the minimum 28 days whilst on matenrity leave.

[MaternityActionfreeadvice]

Dear Heretodaygonetomorrow1

Thank you for your question.

Without more information, it is not possible to advise whether the language used would satisfy the legal test of discrimination. However, unwelcome comments related to your sex or your pregnancy could constitute either discrimination or harassment. Forms of discrimination can range from unintentional misunderstandings and lack of awareness through to deliberate and/or malicious acts – the best way to handle the situation may depend upon which possibility you think applies here.

If you have not already, keep a log of all alleged discriminatory language used (previously and anything going forward) - including who said it, what was said, to whom, where, when and details of any witnesses. This information will be very helpful if you decide to bring a claim in the employment tribunal.

Discrimination at work is unpleasant and it can be really tricky to know what to do. Does your employer have an equal opportunities policy or similar? This may set out the channels available to you to raise concerns about discrimination in this type of situation. It may also be a useful document to refer to in discussions with your employer if you feel that your concerns are not getting taken seriously.

From your post, I can see that you have already taken steps to try to resolve the matter informally by speaking to managers. Have you discussed the matter with HR? If not, I would recommend that you ask for a confidential meeting with HR to discuss your concerns about the comments made to you. HR professionals will generally have a better understanding than managers of what constitutes discriminatory behaviour/language and how to deal with it. They may be able to suggest some forms of early intervention which could help to repair the workplace relationship between you and your male colleague (if you are comfortable with this). This may be more appropriate if you think the language used potentially stems from a misunderstanding or a lack of awareness on the part of your male colleague.

It would be a good idea to think in advance of that meeting of what outcomes you might want from raising those concerns e.g. are you looking for recognition that the language was unacceptable, some action to be taken against your male colleague, a change of shifts so you do not have to work together going forward etc?

The reality is however, no matter how the concerns are raised (informally or formally), it is likely that your employer may want/need to investigate your concerns further before doing anything. If you believe that the language used was deliberate or malicious, it is difficult to envisage a solution which does not involve an investigation of some form. Any investigation is very likely to involve speaking to your male colleague and asking for his version of events. As such, he is likely to become aware that a complaint has been made by you. That being the case, you should make it clear when you speak with HR that you are concerned about retaliation by your male colleague as a result of raising these concerns, and ask what steps they will take to ensure that this does not happen. This is a very understandable concern, and one that HR should be able to address with you. I note that you are 30 weeks pregnant – and will therefore be starting maternity leave in the not-too-distant future. That timing may be helpful in reducing the scope for any retaliation if you will not be in the workplace.

If you are unable to resolve it by talking to your employer informally, you could raise a formal written grievance. I can understand your reluctance to raise a formal grievance, and generally this should be a last resort as it is not always the best way to find constructive solutions. However, if all else has failed, it may be the only way to make your employer take your concerns seriously. As with the informal process, you should be clear on what outcomes you might want from the grievance process.

Finally, you can contact ACAS to register for early conciliation to see whether they can resolve the dispute and finally bring an employment tribunal claim if you cannot resolve matters. Please be aware that there are strict time limits which operate for bringing claims to the employment tribunal. Generally speaking, you have three months less a day from the date of what you are complaining about (i.e. the alleged discriminatory language) or the last in the series of things you are complaining about to contact ACAS if you want to go to the employment tribunal afterwards (or think that you might want to do so).

We have put together a guide on where to get more help if you're unable to resolve it: maternityaction.org.uk/where-to-go-for-more-help/

@Heretodaygonetomorrow1

I’m currently 30 weeks pregnant and have been subject to sexist and discriminatory language at work. I’ve been to managers who have suggested mediation which I have refused. I have now been sent a grievance form. I’m reluctant to go down this route due to foreseeing my life will be made difficult by the Male colleague. I don’t know if this is something that I can get advice about on here? Thanks

[PutTheBassInYourWalk]

Hello, I started a new job when I was 5 months pregnant. I will have worked there for 3 months prior to going on maternity leave. My probation is 6 months.

At the moment there is some confusion about what happens to my probation. Does it end whilst I am on mat leave or do I do the last 3 months when I return? Is there any employment law or guidance regarding this?

To be clear, my work are not being at all difficult - they are being very supportive. It's just that they are just not sure!

Thank you

[DiscardedTool]

We have been advised that we must all work on a rotational shift, like they did to Asda employees recently. If we can't do it, because of childcare or other commitments then we are out. Ive accepted the fact that the proposed changes in september will happen because part if their plan has already taken place. So im obviously actively looking for another job, because i can't do the hours they are saying i will have to. As i have no childcare before school or after 6.

However, is there anything that says they cant do this? Ive read something vague about indirect sex discrimination because mothers are generally the people who sort out the childcare.

I have discovered that part time people who work less than 6 hours a day have been offered fixed shifts, those who do a full 8 hours must do the rotation. I asked why i couldnt be considered the same as other part timers as i am doing the same amount of hours just in fewer days. They said they couldnt discuss this till consultation period was over.
However if i apply for flexible working hours during my notice, it could be accepted under my old contract, but then when i opt in to the new one id have to apply again i assume. And if this was denied, id have to resign because i couldnt do the hours, in turn making myself jobless and not elegible for support or benefits for a long time, is that right?

Another point about applying for flexible working hours, it seems pointless, i cant see them saying yes to me basically requesting hours theyve already completely disregarded in the consultations... i gave a list saying i could work any hours or days between 9-6, so not restrictive in my opinion.

Ive also read a tiny bit about constructive dismissal but again not sure if i can apply it to my situ.

They will obviously argue that they are doing it as a business need, bums on seats at certain hours. However a bum is still required for the hours i can do and they have denied.

No union involved, and ive had my final consultation.

Thanks for your help!

[MaternityActionfreeadvice]

Dear PutTheBassInYourWalk

Thank you for your query.

There is no specific rules / legislation governing this type of situation unfortunately. I would consider it open to the employer to treat your first 3 months back after maternity leave as the remainder of your probation as you technically have not been able to complete the 6 months prior to going off. That being said, your employer can also happily choose to ‘complete’ it while you are off if they have no concerns about your performance in your role to date.

If they have not decided how they are going to treat it before you go off then I would just ask them prior to your return whether your first 3 months back is being treated as the remainder of your probationary period. Many employers do not even formally note the end of a probationary period but I think it is positive that you are discussing it and I do not anticipate that them doing it either way round that I have described would be inappropriate.

I hope that helps.

@PutTheBassInYourWalk

Hello, I started a new job when I was 5 months pregnant. I will have worked there for 3 months prior to going on maternity leave. My probation is 6 months.

At the moment there is some confusion about what happens to my probation. Does it end whilst I am on mat leave or do I do the last 3 months when I return? Is there any employment law or guidance regarding this?

To be clear, my work are not being at all difficult - they are being very supportive. It's just that they are just not sure!

Thank you

[AnnaCMumsnet]

Hello

We're closing this thread to new queries now.

Thank you so much to everyone who's posted questions this week. And a very big thank you to Maternity Action and their very helpful volunteers. We will do our best to get answers for the outstanding questions to post on the thread. Anyonewho needs advice can always contact Maternity Action directly.

Thanks
MNHQ