Home Advice & informationDismissal When your employer offers you a job less paid (or with less responsibilities) – Parental Rights and Demotion FAQs

When your employer offers you a job less paid (or with less responsibilities) – Parental Rights and Demotion FAQs

I/ I’m due to return from maternity or shared parental leave but have been refused my old job back because of a reorganisation. I’m being offered an alternative role but the only job being offered is very much lower in status and responsibilities. Should I take it? What can I claim?

II/ I’m due to return from maternity or shared parental leave and I want to return part-time. I have requested flexible working but my employer has refused to allow me to return to do my previous job part-time. I’ve been offered another job instead doing the hours that I wanted to work but I think it is a lower status role.

III/ I’m due to return from maternity or shared parental leave and I want to return part-time. I have requested flexible working but my employer has refused to allow me to return to do my previous job part-time. My employer is now insisting that I return to another job instead. The new job is on the hours that I wanted to work but it is a lower status role and the hourly pay is less. I feel like my employer is trying to push me out.

IV/ I asked to work part-time on my return from family leave. My employer has agreed my request to return to my old job on part-time hours so I will now be working 3 days a week. My hourly rate of pay will stay the same and I get to keep my benefits, though my holiday will reduce pro-rata. However, I previously managed 2 other members of staff and my employer says that they will now report to another manager who works full-time instead, because I can’t manage them properly if I’m part-time. I feel that this is a demotion. What can I do?

V/ I returned from maternity leave last month. I came back to my previous job but my employer has now told me that my job is redundant and I’ve been offered a different role instead. The new role is very similar to my old job, except that it is for less pay. I feel like I have been demoted and this is an attempt to push me out for having taken maternity leave.

I/ I’m due to return from maternity or shared parental leave but have been refused my old job back because of a reorganisation. I’m being offered an alternative role but the only job being offered is very much lower in status and responsibilities. Should I take it? What can I claim?

You have special status if your job is selected for redundancy while you are still on maternity or shared parental leave. This means that your employer is obliged to offer you a suitable alternative job if one is available. A job will be suitable if the terms and conditions are not substantially less favourable than your existing job. This would include your status, responsibility and pay. You are entitled to be offered suitable alternative employment as a priority over other employees who are also at risk of redundancy. If you believe that your employer has not complied with this requirement then you could have a claim for automatic unfair dismissal. See here for more details.

However, your employer is not obliged to offer you suitable alternative employment if there is no such job available. In those circumstances you have three options:

1 Decline the alternative job on the basis it is not suitable alternative employment. If you do this you will be entitled to your notice pay and a statutory redundancy payment (as long as you have 2 or more years’ service). If your employer has an enhanced redundancy payment scheme then you may be entitled to enhanced redundancy pay under the relevant scheme. You may also have a claim for unfair dismissal and/or sex discrimination in relation to your redundancy if, for example, you believe that the redundancy was not genuine (e.g. it was a sham designed to demote you for having taken leave), that your employer did not follow the right process in making you redundant and/or you believe your employer has failed to comply with its obligations to offer you suitable alternative employment during the protected period. [refer to separate note]

If you wish to go down this route you should decline the alternative job asking to appeal against the redundancy decision on the grounds that you do not believe the redundancy is genuine and you believe it is an attempt to demote you because you have taken family leave;

2 Accept the position offered. This will mean that you have an ongoing source of income (albeit that your pay may be less in the job you’ve been offered) and you can look for a new job on your old pay/status elsewhere if you want to do that;

3 Accept the position offered but consider claiming unfair dismissal and/or sex discrimination in respect of your dismissal from your old job. This option may be appropriate if you believe that the redundancy was not genuine, that your employer did not follow the right process in making you redundant and/or you believe your employer has failed to comply with its obligations to offer you suitable alternative employment during the protected period. See here. If you succeed in a claim for unfair dismissal you could be entitled to compensation reflecting any ongoing loss of earning you are suffering due to the difference in pay between your old job and the new one and an award for injury to your feelings if the treatment is found to have been discriminatory. The Tribunal would however expect you to make reasonable attempts to look for another job elsewhere which pays at the same rate as you old job and any compensation you could otherwise recover may be reduced if the Tribunal is not satisfied that you have done this. If you are considering this option you should raise an appeal with your employer regarding your dismissal from your old job and begin the process to bring an employment tribunal claim within 3 months of the date of dismissal from your old job. See here for more details. Although your employer cannot penalise you for bringing a claim, employees are often deterred by the prospect of claiming against their employer while they remain employed and you should carefully considered how you would approach this.

II/ I’m due to return from maternity or shared parental leave and I want to return part-time. I have requested flexible working but my employer has refused to allow me to return to do my previous job part-time. I’ve been offered another job instead doing the hours that I wanted to work but I think it is a lower status role.

Employees with more than 26 weeks’ service have a legal right to request flexible working. If you have not already made a formal request for flexible working allowing you to return part-time to your current job then you should do so. If you have made a request but not yet appealed, then you should appeal against the decision. If you have already appealed unsuccessfully then there are three options available to you:

1 Decline the alternative job offer and return to your existing job on your previous hours. Your employer is not obliged to agree part-time working and if they have dealt with your request properly and have legitimate business reasons for declining your request then your chances of succeeding in a claim against them are likely to be low. You may have a claim against your employer if they have not properly dealt with your flexible working request, but be aware that an Employment Tribunal has limited ability to review an employer’s decision and potential awards of compensation are very low. You may also have a claim for indirect sex discrimination. See here for more information. It is by no means certain that such a claim would succeed and this would very much depend on the factual circumstances. However, if you did succeed in a claim on this basis then the Tribunal could award you compensation for injury to your feelings.

The Tribunal cannot force your employer to allow you to work part-time but they can make a recommendation that your employer take such steps.

2 Decline the alternative offer and resign from your employment claiming constructive dismissal (if you have 2 or more years’ service) and sex discrimination (see here). As above, it is by no means certain that such a claim would succeed. However, if you did succeed in a claim on this basis then you could recover compensation for injury to feelings and for loss of earnings following your resignation. The Tribunal would expect you to make reasonable attempts to look for another job elsewhere on suitable part-time hours and any compensation you could otherwise recover may be reduced if the Tribunal is not satisfied that you have done this.

III/ I’m due to return from maternity or shared parental leave and I want to return part-time. I have requested flexible working but my employer has refused to allow me to return to do my previous job part-time. My employer is now insisting that I return to another job instead. The new job is on the hours that I wanted to work but it is a lower status role and the hourly pay is less. I feel like my employer is trying to push me out.

Your employer may be entitled to decline your request to work part-time in your existing job. However if they do decline your request then you must be permitted the opportunity to return to your existing job on your previous hours. Your employer is not entitled to insist that you return to a different job on the part-time hours you had requested. You have the following options in these circumstances:

1 Raise this with your employer advising them that you do not want to accept the new job and that you wish to return to your old job on your previous hours instead.

2 Return to the new job that your employer has given you but do so under protest. Raise a grievance about the fact that you were forced to accept this demotion in order to work part-time and ask them to reconsider their decision. If your employer does not change the decision, consider whether to bring a claim for sex discrimination (see here).

3 Resign from your employment claiming constructive dismissal (if you have two or more years’ service) and sex discrimination on the basis your employer has refused to allow you to return to your old job and has demoted you because you asked to work part-time. If your employer has refused to allow you to return to your previous job on your previous hours and instead insisted that you return to a lower paid job then you have a good prospect of succeeding in any claim. If you succeeded in a claim on this basis then you could recover compensation for injury to feelings and for loss of earnings following your resignation. The Tribunal would however expect you to make reasonable attempts to look for another job elsewhere on suitable part-time hours and any compensation you could otherwise recover may be reduced if the Tribunal is not satisfied that you have done this.

IV/ I asked to work part-time on my return from family leave. My employer has agreed my request to return to my old job on part-time hours so I will now be working 3 days a week. My hourly rate of pay will stay the same and I get to keep my benefits, though my holiday will reduce pro-rata. However, I previously managed 2 other members of staff and my employer says that they will now report to another manager who works full-time instead, because I can’t manage them properly if I’m part-time. I feel that this is a demotion. What can I do?

You may have a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. See here for more information. This claim would be brought on the basis that you have been subjected to a detriment as a result of your demotion and the reason for your demotion is because of the change to part-time.

One way of showing this would be to compare yourself as a part-time worker to your previous self as a full-time worker to establish that you are still doing the same work and the only difference is that you have been demoted. Ordinarily a pro-rata principle must be applied to determine whether apart-time worker has been treated less favourably, but a claim based around demotion where the hourly rate is the same is likely to be one area where the pro-rata principle does not assist (but see below).

The key question will therefore be, whether the difference in status is ‘justified’. Your employer may be able to justify any less favourable treatment if it can show that the difference in treatment aims to achieve a legitimate aim and, broadly speaking, that it is an appropriate means of achieving that aim. In this example, it means that if your employer can show that there are genuine business reasons why the other employees need a manager present on a full time basis and changing their manager to someone who is full time is an appropriate way of achieving this, then your claim is unlikely to succeed. However, there is a good chance your employer will be unable to show that a complete change in manager is a proportionate way of achieving its aims. Why is it not feasible for you to manage them three days a week while you are present and for another employee to manage them for the other two days? If you have not already appealed the outcome of your request to work part-time then you should do so, asking them to reconsider this aspect of the change. If you have already appealed but did not specifically raise your rights under the Part-Time Worker Regulations then you may wish to do so now.

V/ I returned from maternity leave last month. I came back to my previous job but my employer has now told me that my job is redundant and I’ve been offered a different role instead. The new role is very similar to my old job, except that it is for less pay. I feel like I have been demoted and this is an attempt to push me out for having taken maternity leave.

If you have already returned to work from maternity leave you are unfortunately outside the protected period which gives you special status in the event of redundancy (see here). However, this does not mean that your employer’s treatment is lawful and there are a number of options available to you:

1 Decline the alternative job on the basis it is not suitable alternative employment. If you do this you will be entitled to your notice pay and a statutory redundancy payment (as long as you have 2 or more years’ service). If your employer has an enhanced redundancy payment scheme then you may be entitled to enhanced redundancy pay under the relevant scheme. You may also have a claim for unfair dismissal in relation to your redundancy if you have two or more years’ service and you believe that the redundancy was a sham [refer to separate note]. A claim for sex discrimination is also possible if you believe the treatment is related to your having taken maternity leave [refer to separate note]

If you wish to go down this route you should decline the alternative job asking to appeal against the redundancy decision on the grounds that you do not believe the redundancy is genuine and you believe it is an attempt to demote you because you have taken family leave.

2 Accept the position offered. This will mean that you have an ongoing source of income (albeit that yothe job you’ve been offered) and you can look for a new job on your old pay elsewhere if you want to do that;

3 Accept the position offered but consider claiming unfair dismissal and/or sex discrimination in respect of your dismissal from your old job. [refer to separate note]. This option may be appropriate if you believe that the redundancy was not genuine and/or that your employer did not follow the right process in making you redundant. If you succeed in a claim you could be entitled to compensation reflecting any ongoing loss of earning you are suffering due to the difference in pay between your old job and the new one and an award for injury to your feelings if the treatment is found to have been discriminatory. The Tribunal would however expect you to make reasonable attempts to look for another job elsewhere which pays at the same rate as you old job and any compensation you could otherwise recover may be reduced if the Tribunal is not satisfied that you have done this. If you are considering this option you should raise an appeal with your employer regarding your dismissal from your old job and begin the process to bring an employment tribunal claim within 3 months of the date of dismissal from your old job [cross refer to guidance on early conciliation/claims].

 

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