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.

[MaternityActionfreeadvice]

Dear Quail15

Thank you for your query. A woman who is on maternity leave is entitled to return to the “same job in which she was employed before her absence.” This means that her terms of employment must be the same as, or not less favourable than, they would have been had she not been absent. The law differentiates between two types of maternity leave – Ordinary Maternity Leave (‘OML’) and Additional Maternity Leave ‘AML’. If an employee has taken a period of AML and the employee cannot return to the same job, the employer must show why it is not reasonably practicable for the employee to return to the same job. The starting point is therefore, that you should be entitled to return to the same role that you left, or one that is offered on no less favourable terms unless your employer has given you a reason as to why it is not reasonably practicable for you to return to the same job. In this case it seems that your existing role has been made redundant because you state that it no longer exists. If your role has been made redundant your employer must consult with you in order to explore whether there are any ways in which your redundancy could be avoided, and also whether there are any suitable alternative roles that you could do. If your employer has made your role redundant it should have followed a consultation process and on the current facts, it does not appear to have done so. Similarly, if your employer has proposed to change your terms and conditions of employment they must consult with you about the changes and ideally seek your agreement to the changes in writing. On the facts you have described this does not appear to have happened.

If you have been made redundant whilst on maternity leave, and ”it is not practicable by reason of redundancy” for the employer to continue to employ you under an existing contract, you are entitled to be offered a suitable alternative vacancy, where one is available, after your maternity leave ends. If you are not offered suitable alternative work and your employment is terminated, you may have a claim for unfair dismissal, constructive unfair dismissal (if you have worked for your employer for at least 2 complete years) or maternity discrimination. Turning to what would be a suitable alternative vacancy, the new role must be:

1. work that is both suitable and appropriate to you in the circumstances and the capacity and place in which you are now employed; and

1. the other terms and conditions of your employment must not be less favourable to you than if you had continued to be employed in your old job.

If the role has been made redundant, and you are on maternity leave, you also are given priority in relation to suitable alternative roles (you would have first right of refusal against others that have been made redundant.)

Arguably, the terms and conditions offered to you here are less favourable than under your previous contract because you are now expected to work a shift pattern that is constantly changing, and longer hours. If you do not believe that the role you are being offered does not constitute suitable alternative employment, you may have a claim for maternity discrimination and automatic unfair dismissal and/or unlawful detriment.

If your role is redundant and you are not offered another suitable role, you should be entitled to redundancy pay as if you were not on maternity leave, provided you have sufficient qualifying service. If this is denied to you, you may have a claim for unfair dismissal or maternity discrimination.

In relation to your flexible working request, you are entitled to request flexible working for any reason and your employer must consider this in a reasonable manner and notify you of the outcome within a three-month decision period. An employer has certain prescribed legitimate reasons for rejecting a flexible working request. These include factors such as if the proposed change will have a detrimental impact on quality or if there is an inability to reorganise work among existing staff. There are also other factors too and an employer is under an obligation only to consider the request but not to grant it. If they do refuse your request your employer must have a legitimate business reason for such a refusal. You should also have the opportunity to submit an appeal against the refusal.

In relation to next steps, I would advise you to approach your HR department to ask why you are not able to return to your old role and seek clarity over whether your previous role has been made redundant. I would also ask them if there are any other roles they consider to be suitable alternative roles and note that you do not consider the role they have offered to be suitable due to the working hours and days involved. I would also note that you would be grateful for an update as to your flexible working request. Should you be offered a suitable alterative role, the flexible request may not be needed. In any event, it may be helpful to seek the support of your Union at this stage.

If you require any further support please see further relevant information here: maternityaction.org.uk/wp-content/uploads/Where-to-go-for-more-help.pdf

@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?

[MaternityActionfreeadvice]

Dear Phoenix85
I’m sorry to hear of the difficulties you are currently facing. To summarise, your issue is that you have been treated unfavourably both during your pregnancy and on your return from maternity leave; particularly in regards to your employer’s refusal to accept your informal flexible working request. The advice below is on the basis that you are an employee.



The right to request flexible working



In addition to being an employee you also need to have at least 26 weeks continuous employment to be entitled to make a flexible working request. If you meet this criteria you can make a written request to your employer. This letter should be dated and at the beginning of your letter make it clear that you would like to apply to work a flexible working pattern, under their flexible working procedure/policy (if they have one), and that you are exercising your statutory right to request flexible working.



You should then set out that you are eligible to make a request in accordance with your length of service and that you have not exercised your right to make a request in the last 12 months. At this point of the letter you should set out that you did make an informal request to work flexibly when you returned to work at 10 weeks after the birth of your child and that this was accepted and implemented. You should provide as much detail as possible in regards to this informal request and the reasons why it was working well, including any positive comments (or lack of negative comments) received during this time.



You need to set out what your current working pattern is and what your proposed working pattern would be. This could be a change to your hours, times of work or place of work. You should clearly state the reasons for your request i.e. childcare. Lastly you need to state the impact and suggested accommodation of the new working pattern. This needs to include the details of any potential impact of the change on your immediate colleagues, department, employer, clients and/or customers. Where possible specify how you think any impact can be dealt with or minimised. I would suggest again repeating that your previous informal working request was accepted and that the employer clearly did not have any concerns at the time.



Employer’s response



Your employer needs to deal with your request in a reasonable manner. However, there is no definition as to what is a reasonable manner but the ACAS code suggests that your employer should arrange to talk with you as soon as possible after receiving your written request. Under the ACAS code your employer should consider the request carefully, looking at the benefits of the request to the business and you; weighing them against any adverse business impact of implementing them.



Your employer should let you know their decision in writing as soon as possible to either accept or reject the request. This should though be within three months of the date of your request (unless you both agree to a longer period). The law does not provide for regulated trial payment although there is nothing preventing you and your employer agreeing to one. It may be that your employer states that the period which you worked flexibly from your return from maternity leave was a trial period but did not work out. You will obviously disagree with this but if you have any evidence to support your contention that should be included in your request.



If rejected, this should be because you are not eligible or for one or more of the 8 business reasons below:

1. The burden of additional costs

1. Detrimental effect on ability to meet customer demand

1. Inability to recognise work among existing staff

1. Inability to recruit additional staff

1. Detrimental impact on quality

1. Detrimental impact on performance (individual, team or business)

1. Insufficiency of work during the periods the employee proposes to work

1. Planned structural changes

Remember: Keep a note of any discussions you have with your employer regarding your request either at the time or as soon as possible thereafter.



If your flexible working request is refused



The next steps would be:

1. Appeal the outcome

1. Submit a formal grievance

1. Grievance appeal (if the grievance is not upheld)

Claims


In the event your employer refuses your flexible working request, your chance of winning a claim for indirect sex discrimination would depend on how good your employer's reason is for refusing your flexible working request. If they can show that the proposed working arrangements would have a significant negative effect on its business, then you would be unlikely to win such a claim. On the other hand, if working your proposed pattern would have little impact on their business - for example, if you could show that it would be easy for your employer to allocate work such that the necessary work was done each week - then you would have a good chance in succeeding in your claim.

In terms of the value of a claim, this would depend on whether you were claiming only for indirect sex discrimination or also for constructive unfair dismissal (for which you need 2 years service). You would claim the latter if you resigned in response to your employer’s refusal to allow you to work flexibly.



A claim for constructive unfair dismissal, if you won, could include compensation for your loss of earnings that resulted from the dismissal (this obviously depends on your salary). A Tribunal would estimate how long it would take you to find a job which pays at least as well as your current one, and compensate you for the financial loss, provided you have made reasonable attempts to find new work.



Before doing so I would advise you to bring a grievance (refer to the ACAS code on disciplinary and grievance procedure) to see if the matter can be resolved as constructive dismissal claims are often difficult to win and should be treated with caution.



There is a term which is implied into all contracts of employment which states that there is a duty of trust and confidence owed by the employer to the employee (and vice-versa). If the employer behaves in a way which is calculated or likely to destroy or damage the relationship of trust and confidence it will breach this fundamental term of the contract and the employee will be entitled to resign in response to the breach and to claim that they have been constructively unfairly dismissed.



In constructive dismissal claims, you have to show that you have resigned in response to the employer’s breach of contract. The longer that you continue to work after such a breach, the more difficult it is to show that you resigned in response to that breach. You could also be held to have accepted the breach (or “waived” it) by continuing to work after it. You should get legal advice on the strength of your claim before resigning. Do you have legal expenses cover on your home or car insurance as this will often include employment disputes?



Limitation



The time limit for commencing a claim in the Employment Tribunal is three months less one day from the act complained of (or, in the case of dismissal, from the date your employment ended), plus the duration of Acas early conciliation.



Sources of guidance:

1. The statutory code of practice, handling in a reasonable manner requests to work (ACAS code)

1. The right to request flexible working: and ACAS guide (ACAS guide)

1. Code of Practice on Disciplinary and Grievances Procedures (ACAS code)

The following may be helpful in how to take it further: maternityaction.org.uk/wp-content/uploads/Where-to-go-for-more-help.pdf

@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?

[MaternityActionfreeadvice]

Dear DiscardedTool

Thanks for your question about your work imposing a new shift pattern. This is something that employers sometimes do and, as you say, has been in the news recently in respect of Asda for example. The way employers go about this can have various legal implications which I have explained below.



Process of changing shift patterns



The method employers use is normally:

· Firstly, to see if it already have a contractual right to unilaterally change shifts without emending the contract at all, or seeking employee consent. It is rare that it will have such power for any significant changes, because even if a contract expressly allows it, every employment contract also has an implied term of trust and confidence which roughly means that employers have to act reasonably towards employees.

· The second thing employers try is to get employees to agree to the change voluntarily. Sometimes an employer will offer incentives to get employees to do so. If an employee agrees to the change, then that is normally enough for the employer to start using the new shift pattern.

· Assuming both of the above steps don’t work, employers then have some choices.

1. They can decide not to make the change.

1. They can decide to impose the change and tell employees that they must work under the new shifts. The employer will then wait and hope that all employees follow that instruction.

§ Some employees reluctantly agree but say that they are “working under protest” which is a way for them to make their objection known and show that despite them abiding by the rule, they are not happy about it and may try and raise a claim later. Often employers will decide to tolerate some unrest in the hope that things calm down and it is not faced with challenges.

§ If employees refuse to work under the new shift pattern, then they may put the employer in a position of taking disciplinary action against them for not following an instruction and that could lead to the employer dismissing the employee.

§ Alternatively, the employee may decide themselves that they will not work under the new shift pattern and they have been left with no choice but to resign. This is the circumstances where constructive unfair dismissal is relevant. It only applies if the employer has not decided to terminate the contract and instead the employee has resigned. The employee needs to show the employer acted in fundamental breach of contract and the employee resigned promptly in response to that breach. I have included a bit more information about constructive dismissal below. It is an extreme option and requires employees to resign.

1. The most extreme option for the employer to take is to tell employees that it is making the change, and that it plans on terminating the old contract, and asking employees to sign up to a new contract with new terms. This forces employees to decide whether to keep their job with the new shifts, or leave. The employee has been dismissed by the employer. The legal reason for the dismissal is “some other substantial reason”. The employer should give notice to bring the contract to an end and start the new one. I think it is this option that has been used in your case.

Unfair Dismissal

To pursue a constructive dismissal claim, you must have two years’ service unless the dismissal is discriminatory (see below). You are also required to show a fundamental breach of contract and must resign promptly in response. If the employer dismisses you, you cannot pursue a constructive unfair dismissal claim.



As your employer has already served notice of the change, you would not be able to pursue a claim for constructive dismissal but instead unfair dismissal assuming you have two years’ service. To defend such a claim, the employer must show that it had fair reason and followed a fair procedure. While from your perspective, the consultation doesn’t seem to have been meaningful, it shows your employer is following a procedure of some sort. While a successful claim is not impossible, it would be a challenge.



In each case, the losses are limited to: (i) a basic award equal to your statutory redundancy pay, and (ii) a compensatory award for loss of earnings which is capped at one year’s pay for most people. Regardless of the limitation, you still need to demonstrate actual loss suffered therefore if you find a new role (or do not try to find one), the compensation available will be limited. As such, the most sensible option and easiest way to ensure income is normally to find a new role as soon as possible. It can be more difficult to establish loss in circumstances where the employer can show it was willing to offer you a role with the same pay albeit different shifts.



Indirect Discrimination

Indirect sex discrimination is relevant when an employer applies the same rule/policy to everyone, but it has a disproportionately adverse impact on one protected group. Requiring employees to work certain hours with a lack of flexibility could amount to indirect discrimination because this requirement could disadvantage women as a group, since women are more likely to want (or need) flexible working for domestic or childcare responsibilities. However, arguments about indirect discrimination are far easier to make out in an organisation with a mixed gender workforce because it will be clear that the female employees are disadvantaged. If the organisation in which you work is predominantly female employees (which we expect it will be), it can be far harder to establish a claim of indirect discrimination. Even if you are able to show that the policy has an adverse impact, it may still be possible for your employer to defend the policy by objectively justifying the need for the new shifts. If the employer can show that the new shift pattern is a proportionate means of achieving a legitimate aim, then it will not be unlawful.



If you succeed with showing indirect discrimination, you would be able to pursue an unfair dismissal claim without two-years’ service. There would be no cap on compensation available (although it would still be limited to actual loss so may not be that significant if you are able to find a new job). You can also get an award for injury to feelings though in the circumstances where you have been affected by a company wide policy, injury to feelings is likely to be at the low end of the scale (in the region of £1,000), if awarded.



What should you do?



Flexible Working Hours

If you haven’t already done so, you should consider making a request for flexible working. In reality it may be rejected but there is no harm in requesting it. Employees with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. Only one request can be made in any 12-month period. The employee triggers the procedure by making a written request. The employer then has a three-month decision period (which can be extended by agreement) to consider the request, discuss it with the employee (if appropriate) and notify the employee of the outcome. An employee's application must:

Be in writing.
Be dated.
State that it is an application made under the statutory procedure.
Specify the change that the employee is seeking and when they wish the change to take effect.
Explain what effect, if any, the employee thinks the change would have on the employer and how any such effect could be dealt with.
State whether the employee has previously made an application to the employer and, if so, when.


The employer must deal with the application in a reasonable manner. If the request is rejected you are entitled to a reason for rejection and a right of appeal. The employer can only reject a request for one of 7 business reasons:

extra costs that will damage the business
the work cannot be reorganised among other staff
people cannot be recruited to do the work
flexible working will affect quality and performance
the business will not be able to meet customer demand
there’s a lack of work to do during the proposed working times
the business is planning changes to the workforce


Failure to approve a flexible working request could be indirect discrimination, however, it is difficult to pursue these claims. In the context of an overall shift change the reality is that a request to work flexibly is perhaps unlikely to be approved.



Grievance

While you could raise a grievance about the situation, unfortunately it seems unlikely in practice that doing so would lead to a different outcome from the one already decided as part of the shift change consultation and any flexible working request.



Counter Notice

If you find a new job before your notice period runs out, and you wish to leave early, you could can ask to be released early. The employer may agree it. You should also check your contract as sometimes it will say that an employee needs to give less notice than the employer to terminate the contract. If that is the case you can serve notice and would only be required to work the shorter employee notice period. You could also decide to leave without working notice. While this would technically be a breach of contract, and your employer could raise an action against you, that is rare in practice. In order to succeed with such a claim the employer would need to show that it suffered a loss as a result of you leaving without working notice and it seems unlikely (although not impossible) that it could do so. You should take legal advice before acting in breach of your contract.



Returning from Maternity Leave

Employee’s returning from maternity leave have certain rights. If an employee returns within 26 weeks, they are entitled to return to the same job that they were employed in before they went on maternity leave. The terms of employment must be the same (or not less favourable) than before leaving. If an employee returns within 52 weeks, then she has a right to the same job (if it is available). If it is not reasonably practicable for her to return to the same job, then she must be offered a suitable and appropriate alternative. Employees on maternity leave (or shared parental leave) also have first refusal on suitable alternative roles in a redundancy situation. However, it can be difficult to establish when this entitlement applies because it depends on the structure of the redundancy exercise.



Conclusion

I hope the above is helpful. As you will see, there are options for you to raise a claim or grievance. However, unfortunately for the reasons stated there is limited scope for success. If the change to working hours means the role no longer works for you, the most pragmatic option is normally to look for a new job that suits better and try to leave on positive terms such that you get a positive reference.

@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 Unicornhamster

Thank you for your query.

Your query states that your employment appears to have ended. If this is the case, then your most effective recourse to any unlawful conduct by your employer is likely to involve engaging in Employment Tribunal proceedings (either as a way of pursuing a legal claim or seeking a negotiated resolution). You should note that there is generally a three month less one day time limit from the date of termination to initiate a process called ACAS Early Conciliation. It seems from the below that you have been in contact with ACAS, so you may already have started this. After the conclusion of the ACAS process (which lasts until ACAS issue a conciliation certificate), if you have not reached a settlement with your ex-employer, you would then have a time limit to lodge a claim. It is best to lodge a claim within one month of receiving your ACAS certificate (or quicker if you started the process late).

The rules around this are fact specific and complex, so you should try to obtain specific legal advice on this if possible.

In terms of your underlying issue, Regulation 10 of the Maternity and Parental Leave Regulations 1999 protects employees who are on maternity leave during a redundancy process. It states that if a redundancy situation arises during an employee's maternity leave and it was not practicable by reason of redundancy for your employer to continue to employ you under your existing contract, then the default position is that you would be entitled to be offered a suitable alternative vacancy.

This is generally considered to give the employee on maternity leave priority over other employees who are also at risk of redundancy and is a rare example of lawful positive discrimination. If an employer does not comply with this requirement, the employee will have a claim for automatically unfair dismissal under section 99 of the Employment Rights Act 1996.

Your situation is not particularly clear cut, and the facts may complicate the situation. On the one hand, your employer may have incorrectly informed you that you needed to competitively interview, which has clearly led to you taking the decision to take voluntary redundancy. On the other hand, the terms of your voluntary redundancy (which are not completely clear from the below) may impact on your ability to make a claim (if for example you signed a settlement agreement to receive an enhanced redundancy payment); or the way in which your claim is presented, you were not technically dismissed by your employer; or the value of your claim (as you may be required to discount any enhanced redundancy payment you have received.

A further complicating factor is that this redundancy process arose during a transfer under the TUPE Regulations. It would generally be safest to bring a claim against both your old employer and new employer, in case any liability attaches to one but not the other. But again, this is a complicated area, that could require specific legal advice.

We would suggest that if possible you seek urgent advice on the time limit for your claim, and if possible seek assistance with the value and presentation of your claims. You should check your insurance policies to see if you have legal expenses insurance cover, as this may cover some or all of the costs of engaging in Employment Tribunal litigation. If you are in a union, you should speak to them about legal advice. You could also check whether you have a local law centre or CAB that can provide employment law advice. We have an information sheet on further advice here: maternityaction.org.uk/where-to-go-for-more-help/

I hope this helps.

@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.

[MaternityActionfreeadvice]

Dear Fluffyface19

I am sorry to hear about your situation.

Given that you have been employed by the same employer for almost 5 years, you have a right not to be unfairly dismissed. While conduct is a potentially fair reason for dismissal, for your dismissal to be fair, the Company would need to have followed a proper and fair disciplinary process before deciding whether or not to it would be reasonable dismiss you – namely, it has to carry out an investigation, hold a disciplinary hearing and give you an opportunity to make representations, and only then decide as to what sanction to impose depending on the nature of the disciplinary allegation. I don’t know the details of the disciplinary allegation, but generally a sanction of a “gross misconduct” dismissal will only be justified in the most serious cases of misconduct. Further, if when deciding to dismiss you, your employer was materially influenced by the fact that you took maternity leave or the fact that you now can’t perform your (changed) role due to childcare responsibilities, then your dismissal may have also been discriminatory.

This also ties in with your job being changed on your return from maternity leave. As you took 8 months maternity leave, you had the right to return to the same job or if it was not reasonably practicable for you to return to the same job - to a suitable alternative job, meaning that the job should have been both suitable for you and appropriate in the circumstances and the terms and conditions no less favourable than had you not been absent. It sounds like the new role was possibly not a suitable alternative because your territory changed by 80%, in which case whether you could take any action against your employer in this regard will very much depend on the conversations you had with your employer about this role on returning to work and since and how much time has elapsed.

Based on the above, and without knowing the full details of your case, you may have potential claims for unfair dismissal, maternity and sex discrimination. In relation to your health issues, if these have been caused by your employer’s unlawful and unfair treatment of you, you may also have a potential personal injury claim against your employer. The time limit for bringing an unfair dismissal claim and/or any discrimination claims in the Employment Tribunal is three months from the date of the dismissal or discriminatory act.

Before you bring a claim in the Tribunal, you must complete ACAS Early Conciliation (EC). This involves notifying your potential claims to ACAS, and going through a period of “conciliation” where your assigned ACAS officer will attempt to promote settlement between the parties, if this is your wish. ACAS website is also a very useful source of information on your employment rights and the Employment Tribunal process.



There are a number of services out there which provide free legal advice which you can access – namely Citizens Advice Bureau (CAB), Free Representation Unit (FRU) and many other free employment legal advice services run by charities and law schools. You do not have to be represented to bring proceedings in the Employment Tribunal, but some of these services, and FRU in particular, may be able to arrange free representation for you at a final hearing. If you can pay for your representation or have legal expenses insurance (note this may be included within your house insurance) you can find a solicitor local to you by using the Law Society website. Alternatively, if you are a member of a trade union, they may also be able to support you.


The following information sheet may be helpful in finding further legal advice: maternityaction.org.uk/where-to-go-for-more-help/

I hope that helps.

@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 Mangopassionfruit
Thank you for your query and congratulations on your expected arrival.

I note that you are due to give birth in May 2020 and that your fixed-term contract expires on 31 March 2020. I have assumed for the purposes of this response that the individual on maternity leave whose role you are covering is intending to return to her role in March 2020, hence the ending of your current fixed term contract. I also assume that the role will continue once your contract comes to an end, albeit being performed by someone else.

SMP

It appears from the dates you have provided that you have met the qualifying conditions for SMP as you have sufficient length of service and you were still employed by your employer in the 15th week before your baby is due. Your employer must still pay your SMP for 39 weeks even if your fixed-term contract comes to an end during your maternity pay period, however, although you can rely on this income throughout the 9 month period, you may still need further evidence of new employment for the renewal of your mortgage.

Fixed-term Employees Regulations

Assuming that you are an employee, you are protected by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (the Regulations). This means you are entitled to be treated no less favourably compared to a permanent employee, for example in dismissing you or as part of the recruitment process for any alternative roles. If you are treated differently, your employer has to be able to objectively justify why.

Under the Regulations, your employer has to inform you of available vacancies by giving you reasonable notification or making sure you have a reasonable opportunity to see adverts for available vacancies whilst you are still employed by them.

If you are treated differently, then you may have a claim against your employer for having breached these Regulations and subjected you to a detriment compared to permanent employees. However, bringing a claim is a last resort and I will return to this in the Next Steps section below.

Length of service and unfair dismissal

As you confirmed separately that you have worked for your employer for less than two years, unfortunately you do not have some of the stronger rights such as the right to become a permanent employee (under the Fixed-Term Contract Regulations) or to bring a claim for unfair dismissal. However, you can bring a claim for automatic unfair dismissal if you can show that the reason why your contract was not renewed was because of pregnancy or maternity leave (see Discrimination below).

Redundancy

A redundancy situation can arise when there is a:

· Business closure (closure of the business altogether);

· Workplace closure (closure of one of several sites, or relocation to a new site); or

· Diminished requirements of the business for employees to do work of a particular kind.

You mention you have been covering another employee’s role whilst she has been on maternity leave and I assume for the purposes of this advice, that the other employee is planning to return to her role once her maternity leave comes to an end. If the employee is not due to return to her role and your employer decides not to hire anyone to do her job (including you), your role would be made redundant. The assumption here would be that there is a diminished requirement for employees in the business to do that work. In this situation, the Regulations protect you again and you should not be selected for redundancy just because you are on a fixed-term contract. Under redundancy law, your employer would need to follow a proper selection process to decide whether you should be made redundant, engage in meaningful consultation with you to decide whether there are alternatives to redundancy, and offer you any suitable alternative roles within the organisation. Unfortunately, as you have not worked for your employer for at least 2 years, you are not entitled to a redundancy payment, however, if your employer offers an enhanced contractual redundancy scheme, you should not be excluded from this.

Discrimination

It is disappointing to hear that your employer was initially very keen to keep you on after the expiry of your fixed-term contract but has apparently changed its tune since you told them you were pregnant. If you were given a formal offer of renewal and this has now been withdrawn because you are pregnant, then you may be able to establish that you have been discriminated against on the basis of your pregnancy as well as bringing a claim for automatic unfair dismissal. This would be difficult to prove if there are no written records and all promises of renewal were verbal. In any event, you would need to take careful legal advice on this and bringing a claim would only ever be a last resort, as I return to in the Next Steps section below.

You are also entitled not to be discriminated against for being pregnant in any recruitment process.

Suggested Next Steps

Given your keenness to remain employed by your current company, I would advise that you revive the discussions about staying on with your employer. If you have any emails or records (e.g. a telephone note) of previous requests for you to stay, you should take these to your line-manager or HR in support of your discussions. You should ask them why they changed their tune, and whether this was due to your informing them of your pregnancy. You could also raise the other maternity leave post that has become available.

As a way of moving discussions forward in a positive way, it might be helpful to point to suitable vacancies that align with your skills and experience. In your email, you have already suggested one such vacancy and, although there may be another fixed-term employee on maternity leave eligible to apply for it, their situation should be no different from yours and you will be on an even footing for any application process. You should remind your employer of their obligation to inform you of alternative vacancies due to you being in fixed-term employment, and this should help ensure that you find out what is available as soon as possible. Remind your employer too that you are entitled not to be discriminated against in the recruitment process and let them know if you need them to make any adjustments for you, such as not holding interviews at times of day when you are likely to suffer from morning sickness.

It is advisable that you keep discussions as informal as possible, to try to work with and negotiate a positive outcome with your employer. You should only take formal steps, such as raising a grievance, as a last resort. Bringing any claim in an Employment Tribunal, such as the ones referred to above for breach of the Regulations, for automatic unfair dismissal or pregnancy discrimination, is also a last resort since it is a very costly, lengthy and stressful process. If you do feel you need to take such formal steps, you should take further careful advice.

Further assistance

If you would like more help after this clinic, a link to Maternity Action’s leaflet can be found here: maternityaction.org.uk/wp-content/uploads/Where-to-go-for-more-help.pdf

@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!