@freshcottoncandle
Hi,
I have been on maternity for 9 months now, a little while after I started, another company took over mine. Since then I have not been kept in the loop with anything, I've been blocked and ignored by all members of staff, and have had to email multiple times to beg for clarification that I still have a job there. I have definitely had major discrimination due to being on maternity. Now I am currently shielding and have been told by my consultant to do this til at least July. Was supposed to be returning to work in July and have let work know I'm shielding. They have sent me a form to sign saying that I agree to any changes being made to my job (will not outline the changes) and if I don't sign in 7 days then that will be my resignation without any redundancy. Is this legal? I do not want to sign if I don't know what changes will be made. Thanks!
Dear freshcottoncandle
Thank you for your enquiry although it is disappointing to hear of the stress you are having to endure both during your maternity leave and the current pandemic.
The main issue in your enquiry appears to be your employers request for you to agree to a variation of your contract without proper consideration, notice or explanation of the changes or impact on you as their employee. It is not clear whether you have requested that they explain why a variation is necessary, what variations they intend to make, why these variations are necessary at this time and whether variations are also being imposed on other employees. The answers to these questions are crucial in assisting you to determine whether to accept the variation.
Any changes to your contract should be mutually agreed with the consent of both employer and employee. An employer that imposes changes to an employee’s contract without consent will be in breach of contract. This is why you have been asked to sign the variation form. In determining whether a contract variation can be imposed depends on the intended contractual changes and whether the variation is reasonable. This is a broad test. If they refuse to explain why the changes are necessary and what changes are to be imposed it is unlikely that this would be reasonable.
Whether the variations they seek to impose are major or minor also play a part in determining whether this request is reasonable. This includes a consideration of any impact or benefit to yourself such as a change in your salary or hours. If the changes imposed disadvantage you, consideration must be provided such as salary or other benefit.
You would also want to look at your original contract to see whether it contained a flexible contractual variation clause. Many employers incorporate such terms into contracts to provide flexibility in making contractual changes later, without the need for agreement. Any such right in your contract would need to be clear and unambiguous. However, the existence of such a clause in your contract would not provide your employer with an absolute defence and unfettered right to impose variations. A Tribunal would consider whether the changes are minor or major and whether they are for a genuine business reason.
I would therefore advise you to write an urgent letter to your employer requesting:
What changes they wish to impose
Why they are necessary
Why they are necessary now
Who else is subject to these variations (this will assist you in determining whether any potential dismissal is due to your maternity leave and / or shielding)
If possible send this by email so that you have a written record of your request. This should include a letter from your consultant or GP that you have been advised to shield. Depending on their response, or possibly lack of, you will need to decide whether you adhere to their variation or not.
You state that they have given you seven days to agree to the changes, failing which that will be your resignation without any redundancy. I presume that you mean they will terminate your contract by reason of dismissal, potentially claiming a failure to follow reasonable instructions. My advice is that they do not appear to have provided you with reasonable notice of the change, sufficient information to make an informed decision or provided for consideration (necessary in a contract).
Dismissal and re-engagement
If you do not agree to the variation, your employer could terminate your contract and offer to re-engage you under the new terms. This removes your employer's risk of being in breach of contract as your old contract is terminated lawfully (if proper notice is provided). In the current pandemic this is something many employers are doing, although your employer would need to show that it had a genuine business reason for making the changes. If your employer took this approach, you could potentially have an unfair dismissal claim (see below). You could also work under the new terms in protest and bring a claim for breach of contract or unlawful deduction of wages (if your salary is detrimentally affected).
Unilateral variation of contract
Alternatively, if you do not agree to the variation, your employer may try to impose the contractual variations unilaterally i.e. without agreement. This would be a breach of contract.
Please note that for a breach of contract claim, if your employment continued you would need to bring a claim in the High Court or County Court, whereas if your employment was terminated you would bring the claim in the Employment Tribunal.
If you were to be dismissed as a result of refusing to agree to the contractual changes, there are a number of claims you may be able to pursue:
- Unfair dismissal
If dismissed you could bring an unfair dismissal claim. It the employer states that your dismissal is for failure to follow reasonable instruction you would need two years’ service in order to bring this claim.
Your employer would have to show that it had a fair reason for dismissal and that it acted reasonably. For example, it would need to show that it had a good business reason for changing your contract and that it followed a fair process in consulting with you and the eventual dismissal.
- Automatic unfair dismissal (automatic)
If dismissed because you were shielding you could bring a claim for detriment/automatic unfair dismissal on grounds of health and safety. As you were in a circumstance of danger which you recently believed to be serious and imminent which you could not reasonably have been expected to avoid, resulting in you refusing to return to work when advised to shield and that in the circumstances of danger which you reasonably believed to be serious and imminent, you took appropriate steps to protect yourself from the danger.
You would not be required to have two years’ service to bring this claim as connected with health and safety.
- Automatic unfair dismissal and maternity discrimination
If you are dismissed for a reason connected to your pregnancy/maternity leave this would amount to automatic unfair dismissal and maternity discrimination.
There is no minimum length of service required to bring this claim.
- Automatic unfair dismissal and disability discrimination.
If you were dismissed and this was connected to your need to shield you may also have a disability discrimination claim. This will depend on your medical reasons for shielding and whether they meet the test as to what constitutes a disability. If your medical grounds constitute a disability, your employer would also be under a duty to make reasonable adjustments.
There is no minimum length of service required to bring this claim.
Other claims that you may be able to bring that are not dependent on your employer dismissing you:
Constructive dismissal
A unilateral variation of your contract can amount to a fundamental breach of contract. This means you could refuse to sign the new contract and resign in response to their breach. However it is not advisable to resign purely to pursue a constructive dismissal claim as these are inherently uncertain and difficult to pursue and in your situation your employer may dismiss you in any event. In a constructive unfair dismissal claim the burden of proof is on you to show that the breach was fundamental. Resigning from your role is a significant step that should not be taken lightly and requires professional advice. Should this be something you wish to consider, you should seek further legal advice before doing so.
Unlawful deduction from wages
Your employment does not need to be terminated to enable you to bring this claim, although it would depend on whether you suffer any losses as a result of the contract variation.
Maternity and / or pregnancy discrimination
In your enquiry you also mention that you have suffered major discrimination whilst on maternity leave. I am unable to say whether the treatment you have been subjected to by your employer would amount to discrimination as no details have been provided, save to say that you could bring a discrimination claim whether your employment continues or is terminated.
Transfer to new employer
You state that having been on maternity leave for nine months, shortly after your company was taken over. This appears to suggest a transfer took place under TUPE Regulations. This is where employees working under one business transfer automatically to the new business. The Regulations provide rules around contract variations following a transfer and that any changes to your terms of employment will be void if the sole or principal reason is the transfer or for a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workplace or changes otherwise allowed under the terms of the contract. A desire to harmonise terms and conditions of employment between existing and new staff is unlikely to suffice. In light of the likelihood that the transfer took place possibly nine months ago it is unlikely that the current suggested change to your contract relates to the transfer, however not enough information has been provided and it will depend on whether other employees are similarly affected.
Compensation
Compensation you may be entitled to depends on the type of claim brought.
In an unfair dismissal claim you can receive (1) a basic award which is similar to a statutory redundancy payment based on a formula that takes account of age, length of service and the amount of a week’s pay and (2) a compensatory award which the tribunal awards on a just and equitable basis to take into account any financial loss caused to you as a result of the unfair dismissal. This includes loss of salary, pension and other benefits.
Compensation for a discrimination claim includes injury to feelings.
An unlawful deduction from wages claims would compensate you for any lost wages as a result of the contractual variation.
Time limits
Different time limits apply to the various claims set the above claims. It is important that you take legal advice on time limits and how to present a claim should you decide to pursue a claim against your employer. There is more information on where to get more help here: Where-to-go-for-more-help-2.pdf