@ahanna91
Hi,
Hoping to get some advice on returning to work after maternity leave - I was due to return to work in April 2021 after taking a years maternity leave.
I emailed my place of work in January to ask whether I would be able to return on a part time basis after having my child, preferably 2 days of work. They responded the following day stating I could only return full time. I then got in touch with maternity advice who told me I should ask for more flexibility etc. I did this to then be told they could offer me a Tuesday/Thursday & 1 Saturday morning a month once they resume after Covid restrictions were lifted (I worked 1 sat a month before going on maternity leave). I then asked for the PM to send me over a new contract with everything in, hours, pay, holidays etc due to me going from full time to part time. I was then emailed a contract not fully filled out & told that they were back to deciding on what days they needed me due to business needs but 16 hours still remained. I replied saying I understand but would need to know days for childcare. I was then told Weds/Fri & every Saturday. I explained the week days were ideal but every Saturday was not with having a young family so there would be any flexibility? As the contract I had been sent did state 1 Saturday a month. They said no I would be required to work every Saturday. I felt I had no option but to hand my notice in.
I have now found out after taking my son to an appointment today that none of the staff are even working Saturdays at present. Is there any further action I can take as I feel like I was pushed out?
Thanks.
Dear ahanna91
Thank you for your email. I am sorry to hear about the way you have been treated.
Depending on when you resigned (as there are strict time limits for bringing employment claims), I believe there is further action you can take against your former employer.
Based on the information provided, you could potentially have a claim for indirect sex discrimination against your former employer and a claim for constructive unfair dismissal.
Indirect sex discrimination
Indirect sex discrimination arises where an employer has a rule, policy or practice which it applies to everyone but which puts employees of one sex at a particular disadvantage in comparison to the other. The employer will be vulnerable to an indirect sex discrimination claim in this situation unless it can objectively justify the rule, policy or practice which is having this discriminatory effect.
An example of indirect sex discrimination is an employer refusing a female employee’s request to work part time because they say that the job can only be done full time. The requirement that the job must be done full time is likely to disadvantage women as a group, since women generally bear a greater part of domestic and childcare responsibilities than men and are more likely to need to work part time (often referred to as the “child care disparity”). Unless the employer can demonstrate that it has legitimate business reasons for needing a full-time worker to do the job, it is likely that the employee will have a claim for indirect sex discrimination against the employer.
From the information you have given, it appears that there is a good argument to say that your former employer has indirectly discriminated against you by refusing your request to work one Saturday a week and, instead, insisting that you work every Saturday. The requirement to work every Saturday is likely to disadvantage more women than men because of the child-care disparity and therefore, is potentially discriminatory. The next question is whether your former employer had a reasonable business reason (an objective justification) for its decision. Given none of your former colleagues are working Saturdays at present, it sounds like your former employer will struggle to argue that it had a legitimate business reason for requiring you to work every Saturday. It is possible that your former employer will say that, at the time you resigned, they were really busy and needed someone to work every Saturday but business has since quietened down – however that seems an unlikely scenario given the nature of the business you worked for and the fact that other staff worked Saturdays. There is also the fact that they didn’t consult with you about their decision but instead presented it to you as a fait accompli which points towards the unreasonableness of their decision.
Constructive dismissal claim
In addition to a claim for discrimination, you may have a claim for constructive unfair dismissal if you were continuously employed by your employer for more than 2 years (a claim for unfair dismissal can only be brought if you have 2 years continuous service).
Constructive dismissal is the term used where an employee resigns in response to their employer’s conduct in breach of an important term of their employment contract. This can be a breach of an express or an implied term.
An example of breach of an express term would be where the employer fundamentally changes an employee’s duties without being contractually entitled to do so. Implied terms are incorporated into every employment contract by law, regardless of whether they have been expressly agreed between the parties. Breach of the implied term of mutual trust and confidence is often relied on by employees where the relationship between them and their employer has irrevocably broken down.
Where an employer has breached an important express or implied term of the employment contract, an employee is entitled to treat him or herself as having been “dismissed”. The employer’s conduct is often referred to as “a repudiatory breach”.
For a constructive dismissal claim to succeed, the employee needs to show that:
-Their employer was in repudiatory breach of the employment contract;
-They resigned in response to that breach; and
-They did not delay too long before resigning in response to their employer’s breach.
In your case, I consider that you could potentially rely upon the breach of the implied term of trust and confidence because of the manner in which your employer treated your request for flexible working, their disingenuous behaviour (including refusing your request outright until challenged and then changing their minds, without explanation, about the days they could give you) and their insistence (again without any apparent justification) that you had to work every Saturday despite previously telling you that you only had to work one Saturday.
In addition to showing that your employer fundamentally breached its contract, you also need to show that you resigned in response to your employer’s breach and that you did not delay too long before resigning. It is not clear from your email when you resigned but if you resigned promptly after being told you had to work every Saturday (and you didn’t return to work under the new terms offered) then you should be able to show you did not delay.
Constructive unfair dismissal cases, however, are very “fact” sensitive” and it is only possible to give you an indication of your potential claims based on the information provided. Therefore, I recommend that if you decide to pursue any potential claim against your former employer, you seek further legal advice and do so as soon as possible because of the time limits you are under (see below).
Flexible working request
I am not clear from your email whether you made a statutory request for flexible working. If you did then you could have a further potential claim against your former employer because there is a procedure that employers must follow where an employee makes a statutory flexible working request. Failure to follow this procedure can give rise to a claim for breach of this statutory right (although the compensation under the statutory scheme is limited in comparison to that available for discrimination claims). For further information about this scheme please visit our website: maternityaction.org.uk/advice/child-friendly-working-hours/
Time limits
As mentioned at the outset of this advice, the ability for you to bring any claims against your former employer depends upon how long ago you resigned. There are strict time limits for bringing claims in an Employment Tribunal and if you do not submit a claim on time, it is possible that you may not be able to take it further.
In order to submit a claim, you have to contact ACAS to start the early conciliation process within 3 months less one day of the date of the act that is complained of. So, for example, if an employee is claiming that their dismissal was discriminatory and/or unfair (which includes a constructive dismissal), the employee has three months less one day from the last date of their employment to contact Acas.
Time limits can be tricky to calculate, particularly in discrimination claims where you can have more than one time limit. It is best to seek legal advice to make sure that you do not miss any.
For more details of the process you will need to follow for bring an Employment Tribunal claim please see the following information sheet on our website here: maternityaction.org.uk/advice/dealing-with-problems-at-work/ The information sheet also gives information about what you can do it you have missed your time limits. However, as mentioned, if you are considering bringing a claim, I recommend that you seek legal advice asap to fully assess which claims you may be able to bring and the relevant time limits.
It is important to mention that bringing a claim in the Employment Tribunal can be a costly and lengthy process and there is no guarantee of success. For these reasons, and depending on your time limits, you may want to try and resolve the issue first with your former employer. However, it is likely to be more difficult to reach a resolution because you have left their employment. You may decide you are better off starting the early conciliation process straight away and using the Acas conciliation service to try and reach a settlement that way. Whatever happens, you must make sure that you start the early conciliation process within the statutory time limit of 3 months less one day, as described above.
I hope this is helpful.