My fiance works as a deputy manager in a nursery and has been on maternity leave for the last two years as our sons were born in quick succession.
She's recently found out that the person currently doing her role has been given a permanent job in that position. Had a phone call this morning from the manager saying that they will both have to agree to re-interview for the job or be made redundant as the nursery cannot have two deputies. She has until Monday to decide. Is this legal?
Reading citizens advice is says the following -
"It’s unfair dismissal and maternity discrimination if your employer doesn’t let you return to work after maternity leave, or if they offer you a different job without a strong reason. They can’t offer you a different job if:
- your job still exists - for example if they’ve given it to someone else
- your job would still exist if you hadn’t gone on maternity leave
- the new job isn’t something you could do
- the new job has worse conditions or pay than yours did - for example if you used to work part-time, and the new job would be full-time only"
What should she do here, threaten legal action? If anyone could advise or if there are any solicitors on here that could help it would be much appreciated.
Thanks
Comments
Personally I would let it play out then take them to court.
Their next move could re-affirm their troubles or they may see sense when they actually look into it.
Make sure everything is in writing too and not over the phone just to make it all easier if they play hard-ball. Certainly is illegal.
A re-interview looks like taking a chance to keep on the person in situ, which can be understood even if disliked.
This is definitely a case for your partners Trade Union.
Trade Unions are established to protect its members, probably more so than to organise for more money. Working circumstances such as safety are definitely part of a Trade Union balliwick.
Sadly if not a Union member you're fishing in the pond of employment law legal people who can be expensive if you lose.
A lot of people feel awkward if in an employment dispute with those paying them money, again understandably as it can sour ongoing relations, another reason why a Trade Union is a good idea because it is sort of detached, indeed Unions can be a beneficial force to have around for both employers and employees if everybody is trying to act decently.
One of my daughters had an issue following her maternity leave and it ended up at a Tribunal where she was awarded a five figure sum. ACAS were very helpful to her.
On the face of it your partner's situation seems to be clear cut in her favour. I just wonder if there has been an element of what I call 'Beneficial Crisis' in that Coronavirus legislation has been used sneakily to trump maternity rights. That could just be my inherent Charlton supporting pessimism speaking though!
EDIT: This website might help:
https://maternityaction.org.uk/advice/redundancy-during-pregnancy-and-maternity-leave/
@seth plum my fiance is of the same opinion regarding the person in situ. This person has already been sacked once and taken legal action against the company and won, so my fiance thinks they are scared to get rid of her. Also, somewhat conveniently, the person who would be interviewing them is someone my fiance hasn't got on with in the past.
I pressed them for an opinion on the situation as it wasn't forthcoming and was eventually told that she shouldn't have to reapply for her job if the position still exists. The company should offer her an equivalent alternative position if it does not.
The employer's conduct is very clearly outside the existing legislation.
Prioritise your objectives for the outcome:- if returning to this job and retaining it is absolutely the primary objective, care will be needed in raising the matter, irrespective of the blatant illegality of the employer's conduct, don't close any doors too early in the process.
State your understanding of the law in plain terms, state where the employer transgresses, state you don't recognise the validity of the deadline, state that the employer's relationship with the other employee is none of your concern and irrelevant to your status and right to return, state that this whole matter is to be dealt with in absolute confidence. Avoid all emotional and judgmental language remain dispassionate at all times. Insist on your right that all communication and correspondence is minuted in writing. Wherever possible present written evidence to support your position i.e. print out the legislation. At all times reserve your right to raise a grievance and to pursue whatever action you deem appropriate.
The employer hasn't got a leg to stand on but there is a process to observe to ensure the correct outcome.
Good luck
If/when the employer turns out to be a massive see you next tuesday grass them up on here and we'll drag them through the mud
1. Talk to people who really know what they are talking about. You have had some good advice on here already, I am sure there are others with specific expertise on this (like @bobmunro perhaps) and it's really good you're talking to Acas. Perhaps Citizens Advice too.
2. Make sure you know what outcome you want (more importantly, what your fiancee wants). What's the best outcome? She gets her "old" job back? She shares a job with the new person? They give her a barrow load of cash to go away? Just be sure you know what you want the end position to be.
Happy to provide advice on a pro bono basis.
Not as straightforward as it seems - the right to return to the same job only applies if maternity leave ends on or before 26 weeks. If the employee takes additional maternity leave up to the 52 week limit she would have the right to return to her previous job, or if not available a very similar role in terms of skills, activities, and with identical terms and conditions. Being out for 2 years with consecuative pregnancies would indicate additional maternity leave has been taken.
That said, what you describe is unlawful - it is the employer's responsibility to find an alternative role, and if it is the same role where she is being asked to re-apply along with the maternity cover person then definitely unlawful - your fiance has preference in a 'redundancy' situation with one role, and two in the redundancy 'pool' - it is called 'bumping'.
DM me if/when you need any advice - but the first stage should be to question the approach being taken by the employer.
@StigThundercock some points there I wouldn't have thought to include, great help many thanks.
Do love this forum 🙂
She wants her old job back as was happy there, her sister works there and that's where we had been planning on sending our boys.
That said, since she's calmed down a bit from this morning's phone call she's spoken with her sister who's said she'll leave and take her daughter out if my fiance isn't reinstated. That would be 3 sets of fees they'd be missing out on. So while she'd like the job back she's not prepared to be taken for a mug and happy to fight them if necessary.
She'd also be open to a job share but this doesn't appear to be an option at the moment.
It is a really good idea to approach this as dispassionately as possible and to try to avoid burning bridges.
Stig T has provided a really good route and checklist to use as a guide.
It may be your fiancée is not that confident in a dispute situation, but putting as much in writing as possible is a good idea, being chronological in structure and keeping a record of everything, even verbal exchanges, is a good idea.
It is also cool to share any record(s) you keep with your employer, so as to be conciliatory yet assertive.
If there is any face to face meeting I would strongly advise your fiancée to be accompanied by an advocate/friend/witness/record keeper.
Very best wishes, we all have a mother, and women should not be disadvantaged because their bodies pop out the babies.
Education Unions are very well versed in this kind of thing.
Edit.
Sorry just seen it is about deputy manager of a nursery.
However that is advantageous as nurseries are absolutely expected to follow rules properly (ofsted), so following employment rules properly ought to be very biddable.
Unfortunately the insurance doesn't include legal cover but great suggestion.
I made a mistake in regards to when my fiance found out about the other person being given a permanent job in her role; it was actually in July. Subsequent correspondence followed resulting in this email exchange. This would have been agreed by the regional director before the manager confirmed.
Understandably my fiance thought that this was the end of the matter and that she'd be returning as deputy. During the phone conversation earlier, the manager said words to the effect of "this doesn't matter as there has since been a restructuring in the company". Whether they are legally allowed to do this or not it just confirms the type of people she is dealing with.
As I said earlier, she will have lost the right to return to her previous role but still has the right to return to a 'very' similar role. If there is someone already in that similar role then Talal's fiance can bump them so that if there are any redundancies as a result of a restructure for example then the other person loses their job.
However, in this situation where it appears the other person is undertaking the exact role then they will be bumped out of the role.
How unprofessional can you get.
I know I'm biased, but my fiance and her sister are two of the few people there that are actually competent at their jobs which makes this all the more frustrating.