Ask the expert: maternity leave

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If an employee returns from maternity leave to find the worker replacing her is now sharing her job, what are the legal implications? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, give their advice.

The question:
My sister works for a well known DIY retailer as an HR assistant. She went on maternity leave but has returned to find that the company is still retaining the person who covered for her role while she was away and she is effectively sharing her job now.

My sister had arranged to work from home during the afternoons when she got back to work, and this was agreed by her previous manager. However her manager has now changed and is expressing considerable doubts about whether this will work. She now has JOINT objectives with a person, who one might assume was after her role.

She's very worried and I haven't heard of this situation before. Has anyone any views about the legality of what's happening?

Karen Drury

Legal advice:

Esther Smith, partner, Thomas Eggar

It is not unusual or indeed illegal in any way for an employer to retain the services of someone who has covered a employee's maternity leave. However, obviously the employee who has been on leave has the right to return to their position -a right which varies slightly depending on whether they return from ordinary or additional maternity leave - and also has a right to make a flexible working request regarding their on going employment.

The situation here is complicated slightly by the fact that on the information provided it appears that the change to working arrangements was agreed to before the maternity leave started, and if the company has already agreed to it, it will be bound by it even if there has been a change in management.

It does not appear that the arrangements are not being operated, although the manager has expressed concern over the arrangement. At the end of the day, the needs of the business must be met and it may well be that the manager has valid grounds for their concerns. Whatever the situation, no changes should be made or imposed in relation to the working arrangements without full consultation and discussion. If the employer does seek to make changes, and your sister made her request to work from home over twelve months ago, she could of course make a further flexible working request now. However, the one thing I would say in that respect is that if she is working at home as she is also looking after her baby, I can fully understand why an employer may object to this, as ultimately it is very hard to do both at the same time. It is also important to bear in mind that the right is only to make a flexible working request, not to have the arrangements you are requesting put in place.

With regard to the joint objectives issue, again I can understand why your sister is concerned but I think it is probably a leap of faith to assume that there would be some conflict between her and the other employee. If the other employee does want to stay with the company it is in her interests that the joint objectives are met by them both, as much as it is in your sister's.

I appreciate that this response may be a little vague but these situations are never clear cut, and a great deal more information would be needed to give a definitive view. If your sister is really concerned about her position she should consider taking advice, possibly starting with the local Citizens Advice Bureau.

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 and employment law specialist, Mills and Reeve

Karen, as you say this seems to be an odd situation so let's try to analyse where we are.

First if the return to work was following ordinary maternity leave then the right was to return to the 'job in which she was employed before her absence' that is the your sister left to go on maternity leave. However, in this context 'job' means that the nature of the work is the same, the capacity in which she does it and the place of work are the same. In essence therefore there is no right to return to, if you like, precisely the same job that she left. Provided the nature of the work is the same then the employer has not infringed any of your sister's rights.

Second, if the return to work was following additional maternity leave (AML) the right is broadly the same as that set out above but the period of AML does not, amongst other things, count towards seniority.

So what your sister cannot do is complain simply about the fact that she is not doing exactly the same thing that she was doing before she went on leave provided that the nature of the work, and the capacity in which she is doing it haven't changed. Thus the mere fact that someone is working alongside her is irrelevant. So the 'sharing job' point may not be significant if, in effect, your sister is undertaking the same work as before her leave. This will be even more significant if your sister has opted to return on a part time basis as the employer will want to ensure continuity by retaining the person engaged as cover for the maternity leave.

You raise two other issues:

First the issue of whether working from home is effective. This depends on an objective assessment of what is happening on the ground. If there really is some difficulty then it should be raised and discussed. Your sister should be consulted and, if she fears that there is a hidden agenda then why not raise the issue herself? Why not ask the manager for a formal assessment of how he thinks it is working in practice. This doesn't have to be confrontational. She can simply say that she needs to know whether it is causing any difficulties so that she can have the opportunity to assess, for example, child care options going forward. I would caution against just burying her head in the sand hoping everything will be ok.

Second you say that there are 'joint objectives'. To me that suggests that the employer considers they have two people doing one job and that therefore job objectives (as opposed to personal development) will be joint. Again I see nothing wrong in that. However, if there are now two jobs, joint objectives seems very odd. Your sister must seek to clarify this with the employer.

Overall, at this stage a discussion must be had with the manager/employer to air these issues. Your sister may be worrying about nothing. However, if she gives the employer an opportunity to explain and she still feels that there is a hidden agenda (presumably to ease her out of the company) she should seek further advice.

Martin can be contacted at: [email protected]

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