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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50711
Experience:  Qualified Employment Solicitor
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I have applied to work part time at my company back in March

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Hello, I have applied to work part time at my company back in March (returned from Maternity leave) and they have approved it with a 3 months trial period.
Trial period has been extended in June with +3 months. Extended trial period has been expired a month ago in September! On the last day I told them that thanks for the opportunity but I`d like to have my old job back - they were refusing me to even talk, but after I raised this issue for 3 times plus in a written email they came back saying that their final decision is that my job is part time permanently. However I told them for 2-3 times that I`d like to have my old job back or an equal full time, they`re refusing this. can you please advise? I thought that I have the right to get my old/full time job back after the trial period! Thank you!

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

So how long have you worked for this employer for, all in all?

Customer: replied 8 months ago.
Hi Ben, I`ve been working for the company for 14.5 years...

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Many thanks for your patience. Once you return from maternity leave (assuming you took more than 6 months off) you do not have the automatic right to return to your old job. According to Reg. 18 of The Maternity and Parental Leave Regulations 1999, “if it is not reasonably practicable for the employer to permit you to return to the original job, they must allow you to return to another job which is both suitable and appropriate for you to do in the circumstances.”

This is the position if you do nothing and just try to come back as normal. In your case you made a request to go part time, so this is a flexible working request basically made by you. The changes you apply for would be permanent, unless otherwise agreed between you and the employer. Here you were told you are going to trial these changes for 3 months. What is important is whether this trial was intended for you or for them, or for both. Sometimes the employer will place a trial for their own benefit to see if this arrangement works and if it does, they can automatically agree the changes, in which case they would become permanent. If they gave the trial for you to determine if this was a suitable change, then they should still seek your opinion on whether you considered these changes suitable before they went ahead and made them permanent. So it all very much depends on what the purpose of the trial was and, more importantly, for whose benefit it was.

In any event, their failure to budge on this means you only have a couple of options on challenging them - one is to raise a formal grievance with them to get this looked at formally by management. If that fails, in reality all you have left is to resign and consider a constructive dismissal claim against them.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss how the constructive dismissal process works and what you need to do There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 8 months ago.
Dear Ben, thank you so much for your response.
Yes, I have taken 12 months for my mat leave so I understand from your email then they don't need to offer my 'old job' back but! In their offer they have said that " this arrangement (flexible working request) can give the best chance of a successful return to work for YOU, and we are prepared to trial it so see if it meets the company's need'. Also confirmed alongside with my new boos, who came in to his new position in June, and he requested to extend the trial period: 'Given these changes we proposed that we would like to extend the trial period for a further 3 months, until 15th September, to fully assess whether the above arrangements are working for the business, myself and of course for YOU.' So In my understanding probation/trial period works for both ways. So If I do decide that I want to go back full time I do have the right to do so?
Formal grievance is a disaster, it takes 3-4 months and my goal is to go back full time now. not in 4 months...
What do you think?

The wording would certainly suggest that the trial is for their benefit (“if it meets the company's need”). I know it said it is best for you but you had already requested it so they would assume that you are happy with it if that is what you asked for, but as this was something they were unsure about they would have done it on a trial basis to satisfy themselves that it is workable.

Then again, the further description does include you more fully into the trial process so you can certainly still try and argue that the trial was of a mutual benefit.

If you tried to go back full time and reject the trial, then it would go back to the original position of whether it is reasonably practicable to allow you to return to that position or if not - if they can offer you something that is both suitable and appropriate for you to do.

In the end I cannot say, you have to resign to pursue this as that is a decision you must make, but bear in mind that if you have tried to go back full time and they have refused it and you cannot go through the grievance process, then it may be the only option. Does this clarify things a bit more?

Customer: replied 8 months ago.
Hi Ben, yes this helps. But it looks like they want to force me to a situation what i don’t like and don’t agree. Company can’ t change a contract unilaterally can they? If i dont’t agree they can’t force right? I think this leaves me to file a grievance at the end.

Legally no, they cannot just change it like that, but employers do it all the time and take their chances - either that the employee accepts it or that they do not fight it to court. The fact it makes it a breach of contract would not stop them from pressing ahead with it, just as the fact that a thief would stop themselves from stealing simply because there is a law that says it is illegal to do so

Customer: replied 8 months ago.
Thank you very much Ben! Apprwciate your time! Have a lovely evening!

you are most welcome and all the best to you too!

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