Job being relocated and possibly changed while off on mat leave - please help

[watercress]

I'll try and keep this brief but I'd really appreciate some advice from someone who knows more about this stuff than I do...

I'm due to go off on mat leave in a few weeks, and my work has just announced that it is closing our office and relocating us all some 30 miles away. We all have mobility clauses in our contracts so redundancy is not on offer. The company will pay any extra travel expenses for the first two years, but will not be increasing anyone's pay (the office is moving to London so we had hoped for London weighting) and has already said that there won't be a pay rise next year (there wasn't one last year, and I didn't get one for the previous two years as my last mat leave spanned them). Our office is being moved to encourage closer working with another part of the business.

My situation is that I won't get any travel paid as I live closer to the new office than the current one (though I drive out of London at the moment, which is considerably quicker and cheaper than commuting into London on the train). I also have to return to work for six months minimum after mat leave or have to pay all of my mat pay back. My job is likely to change by the time i go back as the area I work in is successful, and the part of the business we are moving to be closer to is failing.I have expressed concerns about my ability to juggle commuting with childcare runs, and they won't consider any home working.

Is it a breach of my company's maternity policy to impose the six month return to work clause when they are changing the location and role? I feel as though they have me over a barrel...

Hi, i am a bit old on the employment law side of HR, so just some ideas here for investigating further... i'm pretty sure you should have received the pay rises from your previous materniity leaves - you should have been treated no less favourably than your colleagues whilst you are pregnant and on mat lv and in some areas you should be a priority e.g. redeployment, so if your colleagues in the same field received the pay rises then your company should have treated you the same. I'm not sure you have any case on the relocation though - you are being treated the same as all the others and the business has a strong business case for the changes from what you describe. You also have the mobility clause. Yes a good employer would explore some home working with you but i don't think they are legally obliged to. However, they are legally obliged to consider part time or flexible working - so you could put a case together for working less hours but you would need to show how you could make it work for the business, not just for yourself. I would suggest booking an appointment with the CAB who can advise you further and if you then think you have a case it may be worth employing an employment lawyer. hope this helps.

Den is right re payrises, being off on maternity shouldn't affect your consideration for them.

In terms of relocation, I think you're going to find it difficult to argue that they're being unreasonable. You have a mobility clause, so they can move you, and they're treating you the same as the others. There might be some technical points on how the mobility clause is drafted if you wanted to explore that with a lawyer.

It isn't a breach of the maternity policy to relocate the office unless there's some sort of promise not to (which I assume there's not). Provided the policy is clear, it's lawful to impose a return to work or repay clause.

In terms of home working, have a look here. Home working is one of the flexible working requests you can make (although you will most likely be requried to have childcare for homeworking days), so it could only be refused if there are genuine business reasons. If you put in a request, think about asking for home working only some days, so that it makes it harder for them to say no (I do think that, for most businesses, some physical presence in the office each week is still important).
However, it may be a different matter if your role has changed. Can you tell us more about this? A change in role could be a redundancy situation, and if your maternity policy doesn't make you repay on redundancy, this would be an avenue to explore.

Hi, thanks for the advice.

I don't think they are being unreasonable in terms of the relocation (though they are doing it stealthily so it doesn't become a formal "group" thing), but I am concerned that I will come back and find it all too difficult to juggle, but will not be able to quit because of having to pay back the mat pay (which is, admittedly, generous). I am concerned that there appears to be a hard and fast rule on this (if you do a day below six months on your return you have to pay back everything), yet the office relocation means that I am coming back to a complete unknown and would like some consideration to be given to a sliding scale (so if I do three months, I only have to pay back three months).

The role is likely to change as I am in a specialised arm of a successful part of the business. The powers that be have made no bones about wanting to use our expertise in the area of the business that is failing, and while I accept that jobs evolve over time, for them to change my responsibilities while I am off so I come back to a different location and a different job seems a bit harsh - particularly when they insist I have to come back for six months.

I have broached the topic of home working (and only one day of the three a week I do) and have categorically been told no. The MD doesn't like home working and won't let anyone do it.

If I wasn't pregnant, I would be looking for another job, I really think it is going to be that much of a nightmare to juggle childcare runs for two children and commuting plus coping with going back to work into a completely alien environment and role. But I feel the company has me over a barrel, in that I can't quit as I am about to go on maternity leave.

Or am I being completely hysterical about it all?

They can't make you pay back the statutory maternity leave, only anything contractual above that.

The change in duties thing potentially gives you a negotiating point. Can you check what the policy says about reason for leaving - a lot say you don't have to pay back if you're made redundant or leave due to ill health. Let me know, and I'll see what I can suggest...

Here's the stuff on return to work...

Return to work

The employee has an automatic right to return to her old job at the end of ordinary maternity leave. If the employee wishes to return before maternity leave ends, she must give at least 8 weeks? notice of her early return date.

The employee has no right to delay her return beyond her maternity leave entitlement. If she is sick she must provide a doctor?s certificate. Provided that she complies with this requirement the Company will then treat her as having returned, but as being absent due to sickness.

Should an employee not return to work on the due date the Company will treat this matter as unauthorised absence. The employee will, therefore, be subject to the gross misconduct provisions of the Disciplinary Policy and, subject to the terms of that policy, may have her employment terminated.

Where an employee has taken Additional maternity leave, she is usually entitled to return to the job in which she was employed prior to her absence or, if this is not reasonably practicable, to another suitable and appropriate position.

If it is not practicable to offer the employee her old job back because the position has become genuinely redundant, the employee must be offered alternative employment, if such suitable employment exists, under comparable terms and conditions. ?Suitable? in this context means suitable to the employee and appropriate in the circumstances, although the employee?s decision must still be reasonable if that alternative employment is refused. If there is no suitable vacancy the employee is entitled to a redundancy payment, if eligible.

And here's what the policy says on paying back maternity pay:

Company Maternity Pay (CMP)

Company Maternity Pay (CMP) is payable on a sliding scale depending on length of service. CMP is paid subject to an undertaking that the employee will return to work by the end of their maternity leave period and remain an employee for at least 6 months following the date of return, otherwise it is repayable to the Company in full. This does not include absence for any reason other than paid holiday. If the employee does not meet this requirement the CMP will be repayable in full.

Should the employee be unable to return due to compulsory redundancy the CMP will not be repayable.

I think they've got me, because they will argue that the new role is equivalent and appropriate, whereas I think that a new location and changing my job to increase the breadth of what I do is not. But they won't make my current position redundant, just change the job title and responsibilities.

Sorry for bold, I'm not shouting, I just wanted to mark out the policy bits from the rest of the post.

I'm really grateful that people are looking at this and giving me their opinions. Thank you.

What about exploring the idea of constructive dismissal? i cannot remember the exact legal definition but basically the employer has made it so difficult for you to continue working - i'm not sure if there is a strong enough case or not - Watercress may have a view on this? Her advice above sounds very useful.

I wouldn't recommend constructive dismissal. It's a very hard claim as you have to prove that the treatment was so bad you had to resign. That's a high hurdle and the relocation is v unlikely to make it.

I think you need to explore the changes to your role. Are the changes negative - in the sense that they are less senior, or prestigious, or skilled? If so, you may be able to explore arguing to your employer that the changes are a redundancy and therefore you don't have to repay.

I would also suggest following up the ome working, The MD not liking it is not a reason for turning it down.direct them to the gov website if necessary.

home - sorry, not ome!

Hi, thanks for all your suggestions.

My HR department has now confirmed that it wil not waver on the repayment clause in the maternity policy for fear of it setting a precedent for the future.

They are also saying that any changes to my job will be appropriate and equivalent, so I don;t have anywhere to go there either.

However, they are starting to waver on home and flexible working and have made a commitment (in writing) to looking at all the options to make my return to work after mat leave as workable as possible. I have decided to not press them on the finer details of this now, but will instead wait until I notify them of my intention to return to work for the negotiations - my thinking being that they are being bombarded with flexible working requests at the moment as they are relocating so many of us and so are turning some down. By the time I come back to work, the dust should have settled and my line manager (who is very sensible on such matters) will know what will and won;t work. Also, decisions about flexible working are currently all being handled by the MD and HR, whereas in a year's time, they should have reverted to line manager control and I fancy my chances better with him as he knows me and my work very well.

So thanks to everyone for their help. Just writing it all down and reading what people thought has really helped me clear my head on it all.