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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45297
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, Ive returned to work in JAN after taking 1 year maternity.

Resolved Question:

Hi,
I've returned to work in JAN after taking 1 year maternity. In OCT we discussed my return on a part-time 3 days a week basis, this they agreed with a trial period of 3 months ending 31/03/2014;
My company issued a document called “Family Friendly Policies” just before my maternity started; in this document it stated that anyone returning from maternity whether they took full (9months) or extended (1 year) maternity would return to work under terms & conditions no less favourable than their original job. During my maternity a new regional manager was employed.
At the end of Jan, nearly a month after my return, I was presented with a zero hour contract to sign from 1/1/14 to 31/3/14. At no point in any discussion or written communication prior to this point was a zero hour clause/contract discussed; given the financial commitments of my mortgage and now nursery costs I would have not taken the part time job knowing these would be the terms. During this time my full time position has been offered & filled by another employee.
When I received the zero hour contract I mentioned this is not what was agreed, they advised that all part-time workers would be required to sign it, it is flexible and beneficial for both parties, as I could work what hours I wanted; I advised I had financial commitments, that require me to work at least 3 days a week to cover their costs. The contract didn’t state that when returning it would be considered as continuation of service, upon mentioning this they agreed for this to be changed.
After lengthy discussions, including the new regional head, they agreed to change the contract to exactly as we agreed prior to my return. They made me feel very uncomfortable during this process make me believe that I was turning everyone against me. On signing the contract I thought it was wise to add “signed on the agreed basis that after this 3 month probation period employment will continue on conditions that are no less favourable as outlined in this contract” as they stated it mattered little as this contract will only be for 3 months and after that I would have to sign the zero hour contract. When returning to work on Monday I had an aggressive email in my inbox from the senior HR lady, stating I can’t dictate terms, and if they wished to extend my contract it will be done so on a zero hour basis not any terms I wished. I was told I needed to resign the contract without the addition.
My new Director asked to see me along with my line manager. I explained all the points as above and I stated I wouldn’t have accepted a part-time role if I knew at any stage this meant I would be guaranteed no hours of work. He said he would speak to the senior HR person. He also added they didn’t want to lose me as my line manager had advised how vital I am to the team. They advised the company had strong growth plans and that my full-time job could possibly be offered to me in the summer all going well, which I was happy to hear about and advised I would like to move back full-time to guarantee my hours. On my day off (26/03) at 6.30 the Director called me and advised that they would extend my contract as I wished for a further month but after that I would have to sign a zero hour contract. I was told the company had done nothing wrong and that I should “get over it and sign the contract.
I was hoping that you could provide me with some guidance:
1. Can a company return you on a short-term part-time contract under the terms you agreed (after negotiating to change the contract to 3 days a week) only to then change them to something condition less favourable without indicating this was their intentions
-Can they return me to work on a short-term 3 month rolling contract, when before I had a long-term contract.
What would happen if I refused to sign a new zero hour contract, can they dismiss me and if so do I have any rights, if they dismiss me do I lose out on redundancy, if they dismiss me do they need to follow their disciplinary procedure or can it be considered gross misconduct and summary dismissal.
After the contract ends if I refuse to sign zero hour contract, and they refuse to make me redundant/dismiss me but simply don’t allow me access to the office as they say 3 month contract come to an end, would that be allowed or would they need to make me redundant or no need as contract expired?
If I refuse to sign a contract and they are not prepared to dismiss me but my employment continues under what contract would I be working under my original contract or the zero hour contract
-I am consistently working 3 days a week, does that set a precedence that I am really working a 3 days a week contract and contract should reflect this
-Is this Indirect Sexual Discrimination as only part-time staff are mothers returning to work
-Shouldn’t have the contract been presented to me prior to returning to work so that I can review these and make an informed discussion
-Is there a case of Constructive Dismissal.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. I will be happy to deal with this query in more detail but due to the complexity and the fact I am in tribunal today can I get back to you later on in the day with a more comprehensive response?

Customer:

Certainly, thanks

Ben Jones :

Many thanks, XXXXX XXXXX in touch later today

Ben Jones :

Many thanks for your patience. According to Reg. 18 of The Maternity and Parental Leave Regulations 1999, an employee who takes Additional Maternity Leave (i.e. between 6-12 months off) is entitled “to return to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.”


 


This means that there is no guarantee of a return to the job you performed before going on maternity leave. If the employer can show that it is not reasonably practicable to allow you to return to that job, they need to find you something that is both suitable and appropriate for you to do instead.


 


A common issue that arises is whether the reason for not being reasonably practicable to allow the employee to return to her old job is actually justifiable. Case law has suggested that formal reorganisations can amount to a justifiable reason, whereas a simple preference over someone providing maternity cover will not suffice. The employer needs to show that there is a genuine reason which makes it no longer practicable to allow you to return to your old job, this is not just a formality.


 


In terms of taking the matter further, the options available to challenge this depend on what has happened so far:



  • If they have terminated your employment then this could amount to an automatically unfair dismissal and/or pregnancy and maternity discrimination

  • If your employment has not terminated but you are unreasonably being denied the opportunity to return to your old job, that could amount to pregnancy and maternity discrimination and/or unlawful detriment

  • If you have been given an alternative job which you find unsuitable, then you could resign and make a claim for constructive dismissal and/or sex discrimination.


 


Each of the above claims will be made in the employment tribunal and you can seek compensation for loss of earnings and/or injury to feelings.


 


As to the other specific questions you had:


 


1. Can a company return you on a short-term part-time contract under the terms you agreed (after negotiating to change the contract to 3 days a week) only to then change them to something condition less favourable without indicating this was their intentions.


 


Not really, they can’t. If you had agreed a reduced hours contract then you would expect this to be more or less on the same other general terms that you had beforehand. If they wanted to make more significant changes, such as making this into a zero hours contract they this should have been made clear at the outset to give you the opportunity to consider the option and whether it is something you wanted to agree to.


 


Can they return me to work on a short-term 3 month rolling contract, when before I had a long-term contract.


 


Again, no. The rules as stated above say that any alternative position should be suitable so if you had a permanent contract before, it would be unreasonable to claim that a short-term rolling contract for 3 months is a suitable alternative.


 


What would happen if I refused to sign a new zero hour contract, can they dismiss me and if so do I have any rights, if they dismiss me do I lose out on redundancy, if they dismiss me do they need to follow their disciplinary procedure or can it be considered gross misconduct and summary dismissal.


 


They could potentially dismiss you but it won’t be gross misconduct or a summary dismissal. It would either have to be redundancy or ‘some other substantial reason’, depending on the circumstances. You will only get redundancy if the actual reason for dismissal was redundancy.


 


After the contract ends if I refuse to sign zero hour contract, and they refuse to make me redundant/dismiss me but simply don’t allow me access to the office as they say 3 month contract come to an end, would that be allowed or would they need to make me redundant or no need as contract expired?


 


The non-renewal of the contract would still amount to a dismissal so they need to show there was a fair reason for non-renewal and also follow a fair procedure. If they simply refused to allow you to work, then that could be construed as a dismissal itself or you could be forced to resign and claim constructive dismissal.


 


If I refuse to sign a contract and they are not prepared to dismiss me but my employment continues under what contract would I be working under my original contract or the zero hour contract?


 


It would be under the last agreed contract you had in place.


 


I am consistently working 3 days a week, does that set a precedence that I am really working a 3 days a week contract and contract should reflect this?


 


For such a short period it would be unlikely. You are really looking at this option only if it was a long-term thing, we are talking years rather than months.


 


 


Hopefully this has clarified the issues for you.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Customer:

Hi Ben - with the family this weekend will take a detailed look late Sunday. Thanks in the meantime.

Ben Jones :

No problem, enjoy your time

Customer:

Hi Ben - thanks for your patience, one last point, apologies for overlooking originally.

Customer:

If the company were to offer me a a new contract, this being my full-time position back but on a initial short-term contract (until the end of the year as they were not budgeting on having 2 full-time people in the role that I do, my maternity cover and me), say until the end of the year and then review with the regards XXXXX XXXXX What would be the difference/risks to me over and above requesting that I would like a full-timer permanent role (not a contract with an end date). Both would be continuous employment, and therefore if they were not to extend my contract beyond the initial term they would need to make me redundant and under both options the redundancy pay would be the same - please correct me if I am wrong. The one question I would have is say I start maternity leave before the end of the year, could they simply choose not to extend my contract and therefore say they don't have to pay maternity (or more accurately) the additional maternity over and above the statutory leave? Thanks

Ben Jones :

you are correct hat you keep your continuous service in both cases and that your potential non-renewal would be a dismissal in law, which they must justify as being fair and by following a fair procedure. So from that respect your right would be the same. Whether you get enhanced maternity if you are dismissed would depend on the terms of the contract and the clauses dealing with this benefit - whilst SMP would be payable automatically for the duration of the maternity leave as long as you qualify right at the start, enhanced maternity pay could be stopped if you are no longer an employee so that is a potential risk.

Ben Jones :

If you need me to clarify anything else for you please let me know?

Customer:

ok thanks a lot so over and above maternity, if they offered me a full time role until the end of the calendar year, there would be little difference, apart from the need to extend/sign an another contract in January. Is a precedence set which means they can continue to offer me 6/12 monthly contracts rather than back to my original permanent full-time role if I sign a short-term contract until the end of CY - or again in effect (apart from the need to keep re-signing a contract) would my rights be the same under either. As an aside my company currently has 47 employees and is looking to grow this year which would mean they would most likely be 50+ persons after which they would need to auto-enrol employees into a pension, me being on a rolling 6/12 months contract - would that exclude me from being eligible for such a pension. Thank you.

Ben Jones :

Hi, sorry I was offline by the time you had replied last night. If they keep offering you fixed-term extensions to your contracts and you are happy to accept these, then after 4 years you automatically become a permanent employee again. Generally, your rights during that period would be the same as you would still have the same protection against unfair dismissal as any other employee because that only matters on your length of service.


 


The Fixed-term Employees Regulations, which protect fixed term employees from less favourable treatment, require employers to offer access to occupational pension schemes on the same basis as permanent staff unless different treatment is objectively justifiable. So unless there are specific reasons that make this impractical or unreasonable, you should be treated the same way as a permanent employee when it comes to pensions.

Customer:

Ben thanks ever so much.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45297
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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