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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48760
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked at a company years in the role of accounts/payroll

Resolved Question:

I have worked at a company for 9 years in the role of accounts/payroll and job orders for a specific client. I am the only person working in this role. I went on maternity leave 01/01/15 and planned to go back after 33 weeks. I asked for a meeting to arrange some keeping in touch days before going back to have a handover from the cover and I was told my job no longer exists as the work has been shared out to my cover and a new member of staff. I queried this and was told I couldn't do anything as I took more than the 26 weeks ordinary maternity leave. They have offered me a role at their sister company and when I asked for the job description I was told by my director he was going on holiday for 2 weeks and would 'put something together' when he got back and then arrange another meeting. I feel he is just inventing me a role so my cover (a friend of his) can keep my position.
I know the new job will not be accounts and I will have to retrain.
Should my cover not go back to her old role and I get my job back? Why should a new member be trained up? I have accounts qualifications and neither of the other 2 staff do.
if my position apparently has not existed since April (which it clearly still does) should I not have been told before I went to the meeting on 13th July?
I'm so upset about this when I should be enjoying time with my new baby.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

9 years in full time permanent employment

Expert:  Ben Jones replied 2 years ago.
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.
Before you go down that route it is best to pursue this internally by raising a formal grievance with the employer and appealing if you are not satisfied with the initial outcome.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

The company has had over 10 tribunals brought against them since I've been there (which says a lot).

if they offer me a different position which is a lesser role than mine as it was a skilled role, do they have to pay me the same salary? And should they have been making pension contributions whilst I'm on maternity?

Thank you.

Expert:  Ben Jones replied 2 years ago.
The employer does not have to guarantee the same rate of pay if you are no longer doing the same job as before the leave. It could vary to match the new role. As to pension contributions these would have continued for a period of time, but not for the full duration of maternity leave if you were not getting paid for that whole time. This note explains your rights in a bit more detail:http://www.thepensionstrust.org.uk/NR/rdonlyres/8D6770E3-B70B-41C4-B76D-177A5ED69A11/0/TPTPensionsBulletinFactSheet30212FINALVERSION.pdfHope this clarifies?
Customer: replied 2 years ago.

If my position is no longer there am I entitled to ask for redundancy or do I have to accept a lower role on less pay?

Expert:  Ben Jones replied 2 years ago.
It depends on whether the role is considered suitable for you to do in the circumstances. If you consider the role unsuitable because it is basically a demotion or on less pay you do not have to accept it
Customer: replied 2 years ago.

It is a demotion as I will go from a qualified accounts position with 2 staff reporting to me to a basic administration job in another company. Salary hasn't been advised yet though but I feel I would be better off if they made me redundant and I looked for employment with a professional company in a role I could use my qualifications in.

I'm just unsure if I can ask for redundancy rather than go down the tribunal route.

Expert:  Ben Jones replied 2 years ago.
you can ask for redundancy because your old job no longer exists but similarly the employer does not have to agree and can state that this is a dismissal for some other substantial reason for example. Whilst not necessarily correct, you cannot force them to agree that this is redundancy and pay you redundancy pay. That then leaves you in the same position of having to go tribunal to pursue this matter if you were after redundancy. But you have nothing to lose by at least asking them.
Customer: replied 2 years ago.

If I did not go on maternity I would still be doing the same job now as I was 6 months ago, the role is still there but my cover has been favoured over me. I find it so unfair but apparently they are allowed to do this?

If I went down the tribunal route can I start this when I go back to work after my additional maternity leave or do I need to start it now whilst still on maternity leave?

Expert:  Ben Jones replied 2 years ago.
Well no, as mentioned in my initial reply: "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". It does not mean the employer can't do it but if they do you can challenge is as advised. If you were to go down the tribunal route then you need to do it within 3 months of the alleged discriminatory act taking place, so it would be once you have been prevented from returning to your old job, not just when there are rumours about it - it may still change once you are due to return
Customer: replied 2 years ago.

So if my manager calls a meeting in 2 weeks time and then says I have to accept the new role even though im not due back for another 3 or 6 months if i take all my AML do I have to start a tribunal within 3 months of that meeting or within 3 months of starting the new role?

they should not expect me back until after 52 weeks unless I give 8 weeks notice to return early which I haven't yet,.

do I ask my manager for all the reasons in writing why me old role is no longer available and why he thinks this new role us acceptable and go from there?

I never thought I would find myself in this position and want to do things correctly.

Expert:  Ben Jones replied 2 years ago.
it is 3 months from the date of the discriminatory act, so once you have been officially told that this is happening. You may indeed ask for their reasons for not allowing you to return
Customer: replied 2 years ago.

Thank you, ***** ***** until the meeting and ask for it in writing that my old role is not available then take it further.

should I contact ACAS regarding a tribunal?

Expert:  Ben Jones replied 2 years ago.
you would need to go through ACAS first in any event - they offer a free conciliation service where you try and negotiate with the employer with their help. Only if that is unsuccessful would you be allowed to make a claim in the tribunal
Customer: replied 2 years ago.

Thank you for all your advice. I feel better now I'm more informed.

Expert:  Ben Jones replied 2 years ago.
You are most welcome. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. Thank you
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