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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47355
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Ben ! I need an advice about my returning to work after

Customer Question

Hello Ben Jones! I need an advice about my returning to work after almost 2 years, which first one was Maternity Leave and second was Sabbatical Leave. I wold like to go back to my previous position, but my employer offer me different job and degrading me from being coordinator to an assistant. Is it legal? can You help?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Nicola-mod replied 1 year ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 1 year ago.
Hi Nicola!
Thanks for your reply. I was hoping to get an answer sooner, because I have to let it know to my employer about and wanted to know my rights.
If you can't find anyone to help me with that today can you cancel my question and send the money back to my account, please.
Regards
Aneta Nihaz
Expert:  Ben Jones replied 1 year ago.

Hello, sorry I was away for a few days. Can you please let me know if it was agreed that after the sabbatical you would be guaranteed your old job? Also why are they not allowing you to return to it, does it no longer exist? Is someone else doing it?

Customer: replied 1 year ago.
Hello Ben,
Thank you for replaying to me.
Last year, when my one year maternity leave was about to finish I met my employer to discussed about my return, and as I mentioned to them that it will be financially difficult for me coming back to work and pay that earned money for childcare, so they offered me extra year sabbatical leave. In the letter they confirm the dates of my absence. Also it stated: "we hope that you will be able to return to a job of the same status and with the same terms and conditions of employment as your current job but we will discuss this with you prior to your return" . So a month ago- in mid May I arrange a meeting with my employer to talk about my returning to work. After that they've sent me a letter offering me an assistant position, which in my view is a disgrace.
I work in a small nursery. Before I went on maternity I was a Drop-In Coordinator for 3 years. On a Staff Organisational Chart in Staff Handbook that position is equal with Deputy Managers, when the assistant role is down below. Also I used to be an assistant in that nursery on the very beginning of my carrier - I started working there on 6th Sept.2007, then I had a gap (7 mths in 2011, when I had my first child) but then came back again to them.
I don't know why my employer not allowing me to return to my previous job as that position still exist and the person , who's covering me the whole time was aware that I'm coming back and I suspect she still got terminated contract only, so its not true what they've said to me that this position is no open any longer.
Yet on Tuesday this week I sent an e-mail to my employer and try to persuade them to let me come back to my previous job as I felt fulfilled on it, but unfortunately they deny me to do so.
Expert:  Ben Jones replied 1 year ago.

Hi there, first of all there is no automatic right to return to your old job after you have been off on sabbatical leave. If possible they should try and allow that but even if that was a possibility it is not legally guaranteed in any way. The only time it would be guaranteed would be if you were given such a specific promise under the sabbatical agreement or you were given some other formal promise which guaranteed your return to that job. Without any such promise I am afraid the law does not protect you very well.

In your case you were simply told that they hope you will return to the same job or one of equal status but there was never any guarantee given. So you cannot point to anything which gave you a guarantee to return there and this will be left at the employer’s discretion. For example they could decide to keep your replacement on permanently if they wanted to. I would say that the only situation in which you may be able to challenge it is if the job was available and vacant and they deliberately prevented you from returning to it with no reasonable explanation, then it could potentially amount to constructive dismissal.

This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal and how it can apply here, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47355
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you very much for your explanation Ben Jones.
I think that is what my employer try to do-they deliberately prevent me from returning to my position, because they know its that what I wanted and they hope if they've make it more difficult for me I will quit.
There is few reasons for that: the person, who was covering me during my absence is manager's friend and she apparently hasn't any qualifications whatsoever so that's why they cant transfer her to permanent work in the nursery's room.
The other thing is that I wanted my little one attend to that nursery, so I asked them politely to get me back to my previous job so we can avoid the situation that my child would see me during different nursery sessions.
What do you think is best I could do?
Do you think, that if I prove that my previous position exist and that person, who's doing my job now is on temporary contract, I will be able to persuade them to give my job back? if so what could I write to them? how could I apply for that constructive dismissal?
Regards
Aneta
Expert:  Ben Jones replied 1 year ago.

Thank you. Constructive dismissal occurs when the following two elements are present:
• Serious breach of contract by the employer; and
• An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.

If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.

An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort and to be honest it will be rather risky in the circumstances as there was no official guarantee that you will get your old job back.

Customer: replied 1 year ago.
Thank You Ben Jones!
That was really helpful explanation.
Kind Regards
Aneta Nihaz
Expert:  Ben Jones replied 1 year ago.

You are welcome, all the best

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