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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47905
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello This is a question regarding Maternity Leave and a

Resolved Question:

Hello
This is a question regarding Maternity Leave and a potential Constructive Dismissal.
I am currently on maternity leave (7 months in) from a full time, head office position at a well known UK retailer. I am a department head and directly line manage two other staff.
I had always planned to return to work within the year and had not said anything to the contrary to my employer.
A month or so ago I requested the opportunity to discuss returning to work on a more flexible basis - I had in mind a 4 day week with earlier starts and earlier finishes. My employer responded by saying I would need to attend a meeting to discuss my request.
Before this meeting could take place I received a phone call from my own line manager to say they had reorganised my team and had moved one of my direct reports to another area within the business. They would not be replaced by anyone else.
Following this, my line manager agreed that it may be 'too stressful' to return on a more flexible basis, due to the drop in headcount within the team (i.e. a dramatically increased workload for me).
Since then, I have been informed that my remaining direct report has resigned along with a number of other employees within my department that are critical to the performance of my job (but who do not report to me). I was told this by the resigning report. My employers have not officially informed me of this and are unaware that I know.
I now feel I will be unable to return to work as the workload and hours that will be imposed on me are incompatible with my desire to work more flexibly.
My question is - have my employers acted improperly, and forced me to leave, by:
1) altering my working conditions whilst on maternity leave by essentially increasing my work load, without any consultation;
2) altering my job role whilst on maternity leave by removing the responsibility to line manage two staff, without any consultation;
3) undermining my authority by making changes to the structure of my department without my consultation;
4) failing to communicate further fundamental changes within my department whilst I am on maternity leave.
I genuinely did not wish to be in this position, but I do feel quite aggrieved by the way major changes have occurred without my consultation.
The cynic in me could say they have only started to act like this since my request for flexible working was made. Are they trying to hound me out?
Do I have any rights of recourse or is this just something to take on the chin?
May thanks in advance.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

Hi Ben - I joined in April 2013 and went on mat leave in April this year

Ben Jones :

Were you going to take more than 6 months ML?

Customer:

Yes, I had informed them I was planning on taking the full year, but may return earlier if possible

Ben Jones :

ok thanks let me get my response ready please

Customer:

ok

Ben Jones :

The starting point is that 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, and consultation with the employee is not necessarily required unless it may result in the employee’s redundancy, which is not the case here. So if you had taken more than 6 months’ leave it would have been possible for the employer to make changes to the job because you were no longer guaranteed a return to it anyway.

Saying that the employer would be expected to keep in touch with you throughout your ML and to advise you of any major developments in the workplace. It does not mean you should have been consulted but you should not be ‘left out’ of the loop just because you are on ML.

You are able to raise a formal grievance over this to try and make your concerns heard formally. In terms of legal action, that would be a bit more difficult as you are looking at a discrimination claim but that will cost you just over £1,000 just to issue in the tribunal so it will be risky. However, before you make a claim you are expected to go through ACAS and use their free early conciliation service where they act as a mediator to try and reach a financial settlement without the need of going to tribunal so you have nothing to lose by trying that and you may find the employer tries to settle just to avoid the potential of further action.


Customer:

Many thanks.

Customer:

Do you think there is any case for constructive dismissal if no alternative position is offered (on the same working conditions) and I am left with no choice but to leave?

Ben Jones :

You cannot claim constructive dismissal unless you can show that the reasons for this were because of you being on ML and it could be something which is not linked to that. This is because you need at least 2 years' service to claim it unless it was due to discriminatory reasons. Also the employer only has to offer you whatever is available, they do not have to create a new position that meets the criteria

Customer:

Again, thank you. A final point...

Could it be argued that if I had not been on ML I would have been in a position to defend myself and my team against the reorganisation - as I certainly would not have agreed to it (the impact this has on my workload really is very very material and may well have lead me to resign anyway) - and that they only went through with this as they knew I was off and couldn't speak up?

Ben Jones :

the issue then is that even if you had not been on ML they could have introduced the changes anyway, because you would not have been protected against changes to your contract without the 2 years' service in place, so it may not have changed anything anyway. They key is showing that you were either picked on because you were on ML or that there was a genuine disadvantage for having been on ML, but if that could have happened anyway had you not been away then the argument weakens a bit

Customer:

OK - I think that's all. I guess directly raising my concerns with them is the way to go, then maybe ACAS.

Ben Jones :

yes these are your best options

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