Whilst on maternity leave, an employee was not kept informed about new job vacancies, despite asking her employer on numerous occasions to ensure she was kept in the loop. Esther Smith and Martin Brewer advise on raising a grievance in this instance.
The question:
I am now 11 months into my maternity leave, due to return in about four weeks’ time. I have repeatedly asked for newsletters or any job opportunities to be sent to me while away and have not received any information. I have my requests in email form, and in minutes during a meeting a while ago.
I have now found out that a least two people have been promoted and two jobs (the next level to myself) have been advertised and people appointed. If I had known about one of the particular jobs, I would have sent in my application form for it, but feel I have been denied this chance because I have been away on leave. Can I complain?
Legal advice:
Esther Smith, partner, Thomas Eggar
The short answer is, yes you can. The general principle is that an employee should not suffer any detriment or less favourable treatment than any other employee as a result of being pregnant or on maternity leave.
An employer should ensure that an employee is provided with all the same information and opportunities that all other employees have access to when they are on maternity leave. Many organisations these days have the information on an intranet and arrange for employees who are absent from work to have remote access. If this does not suit, then hard copy information should be forwarded to the absent employee.
If you have missed an opportunity to apply for a promotion then you ought initially to raise a grievance about this and inform the employer that you believe that you have missed this opportunity simply by being on maternity leave, and as such it amounts to sex discrimination. It is also worth stating that you believe that their lack of contact or communication with you during your absence amounts to a fundamental breach of contract, which would be the basis of a constructive dismissal claim.
Whether you pursue such claims is up to you, and you would be well advised to take specific advice on your situation before progressing. I anticipate that the decision to file a claim would depend largely on what arrangements you can agree with the employer regarding your return to work at the end of your period of leave.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
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Martin Brewer, partner, Mills & Reeve
Yes you certainly can complain. You should be treated no less favourably just because you are on maternity leave and even though there’s no obligation to keep in touch, the employer must make sure that nothing it does, or fails to do, places you in a worse position that you would have been had you not been on maternity leave.
So to take an example. If you would normally have had access to a vacancy list and been able to apply for internal promotions you should not be denied that just because you are taking maternity leave. This looks like less favourable treatment simply because of your maternity leave and if so would amount to direct sex discrimination.
You can of course raise a grievance but you ought to consider what you want to achieve. Complaining for it’s own sake may well be cathartic for you but it would be useful if the complaint had some positive outcome. Does your employer’s maternity leave policy need changing (indeed do they have one at all), has someone made a mistake, why were your express wishes ignored? In other words don’t just moan about it, suggest a positive potential outcome/resolution so that the employer is encouraged to take this seriously and not view it as another gripe in the workplace. It’s potentially much more serious than that.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com . For further information, please visit Mills & Reeve.
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