Maternity rights question to pose at ET?

DiscriminationClaimant17

Going to employment tribunal next week and just considering the following question:

Is it possible for a woman to voluntarily waive her maternity rights?

Employer is claiming that I said I didn't want to return to work after having my baby but that we didn't write anything down, so when I wrote my return to work from mat leave 8 months later I had no right to return because (they claim) I'd already said I didn't want to. But in the absence of a resignation surely the only option is to assume that I do plan to return and that it's my choice up until the end of my leave subject to normal notice periods?

NCC-1707

Did you say you wouldn't be returning to work or not?

sangie595

If you verbally said you wouldn't return, then that's as good a resignation as any other. Proving it might be more problemmatic though. So it would be up to the tribunal who they believed. Assuming you didn't say it. If you did, are you planning to lie to a court of law?

If you said it you didn't waive your maternity rights. You exercised them. It is your right not to return to work too!

mariefab

Did you notify your employer, by 15 weeks before your expected date of childbirth, that:
1. you were pregnant
2. the expected date of childbirth
3. the date on which your maternity leave would start?

If so, you did all that was required to exercise your right to take maternity leave.

Your employer should have expected you to return to work 12 months after your leave started and, within 28 days of you informing them they should have provided you, in writing, with the date on which that 12 months would end (i.e. your return date).

If, at any time, you had told them that you did not intend to return to work after maternity leave they would be crazy not to get confirmation of your resignation in writing.
It's for them to prove that you resigned; not for you to prove you didn't.

trailingspouse

If you've said you're not coming back, they've likely put plans in place to cope without you. Little things like taking on a replacement staff member, or increasing the hours of existing part-timers.

I'm assuming you've changed your mind. Rather than blaming them and wanting to see what your rights are and generally blustering about, why not apologise and explain why you've changed your mind?

You have the right to return to work. You have the right not to return to work. You don't have the right to mess people around.

DiscriminationClaimant17

Hi, thanks for the response! Although, ouch.

I categorically told them that I WOULD be coming back in a meeting but never wrote it down, just gave them notice/Mat B1 and everything else by the relevant dates, and they took on a temporary maternity cover girl to replace me for the duration of my leave.

Nobody was messed around - this was my second baby and I was never asked to put in writing either time whether I'd be coming back or not, in fact I volunteered it verbally in a meeting.

I gave 8 weeks notice that I was going to return early, in writing (Had only been off 8months at that point) and they accepted it, put the other girl at notice, arranged a day for handover of work etc and then the discrimination occurred just before I came back which is what the tribunal claim is about - they NOW claim that I wasn't in a protected period because I wasn't coming back, I wasn't on maternity leave, they say I just left, no resignation, nothing.

Obviously theres plenty of evidence all there of the notification that was given etc, but I just want to highlight this moral issue as well if it's relevant. Is it still my right to return from maternity leave if they THINK I don't want to come back there's no actual resignation?

Surely that's discrimination in assuming I can't do the job once I've had the baby (or in my case, with two children) isn't it?

Comms69

DiscriminationClaimant17 wrote: »

Hi, thanks for the response! Although, ouch.

I categorically told them that I WOULD be coming back in a meeting but never wrote it down, just gave them notice/Mat B1 and everything else by the relevant dates, and they took on a temporary maternity cover girl to replace me for the duration of my leave.

Nobody was messed around - this was my second baby and I was never asked to put in writing either time whether I'd be coming back or not, in fact I volunteered it verbally in a meeting.

I gave 8 weeks notice that I was going to return early, in writing (Had only been off 8months at that point) and they accepted it, put the other girl at notice, arranged a day for handover of work etc and then the discrimination occurred just before I came back which is what the tribunal claim is about - they NOW claim that I wasn't in a protected period because I wasn't coming back, I wasn't on maternity leave, they say I just left, no resignation, nothing.

Obviously theres plenty of evidence all there of the notification that was given etc, but I just want to highlight this moral issue as well if it's relevant. Is it still my right to return from maternity leave if they THINK I don't want to come back there's no actual resignation?

Surely that's discrimination in assuming I can't do the job once I've had the baby (or in my case, with two children) isn't it?

the key thing you have to understand is resignation does not have to be in writing.


Nothing to do with assuming anything. If they claim you resigned, and you claim you didn't, the tribunal would have to look at the wider picture and decide which was most likely.

nicechap

DiscriminationClaimant17 wrote: »

Hi, thanks for the response! Although, ouch.

I categorically told them that I WOULD be coming back in a meeting but never wrote it down, just gave them notice/Mat B1 and everything else by the relevant dates, and they took on a temporary maternity cover girl to replace me for the duration of my leave.

Nobody was messed around - this was my second baby and I was never asked to put in writing either time whether I'd be coming back or not, in fact I volunteered it verbally in a meeting.

I gave 8 weeks notice that I was going to return early, in writing (Had only been off 8months at that point) and they accepted it, put the other girl at notice, arranged a day for handover of work etc and then the discrimination occurred just before I came back which is what the tribunal claim is about - they NOW claim that I wasn't in a protected period because I wasn't coming back, I wasn't on maternity leave, they say I just left, no resignation, nothing.

Obviously theres plenty of evidence all there of the notification that was given etc, but I just want to highlight this moral issue as well if it's relevant. Is it still my right to return from maternity leave if they THINK I don't want to come back there's no actual resignation?

Surely that's discrimination in assuming I can't do the job once I've had the baby (or in my case, with two children) isn't it?

I'm probably being very dim but how did the discrimination happen if you were not at work?

nicechap

From OP's other thread for context. I do wish people would stick to one thread like on the parking forum, it makes things a lot easier to follow.

DiscriminationClaimant17 wrote: »

Hi, thanks for replying!

I realise it may be a little tricky to reply without many details, I was deliberately vague as I don't want R to be able to search for info about settlements and this thread pop up! ��

I'll elaborate as much as I can without giving too much away as I understand some details are quite unique to my situation. I was on maternity leave and wrote to my manager to return to work on a given date which she accepted, told me my role had changed basically beyond all recognition but offered me a new one, on better terms with more possibility so I obviously accepted. She then tried to change her mind and offer the job to my maternity cover to avoid losing her but that would have left me without a job so I objected and explained my rights but she started looking for reasons to withdraw the offer and we had several conversations in this 8 week period before I was due to return. The week before I was due to start she withdrew the offer, The final reason she withdrew it was because she said my childcare provider was unsuitable and incompatible with the role. None of her business as far as I'm concerned! She gave the job to my maternity cover instead.

I asked then to have my same job back then if she wasn't going to let me do the new job and she explained that I was basically redundant because the maternity cover was doing everything I would have been required to do.

I wrote a grievance, she ignored it, I went through early conciliation with ACAS, she ignored it. So we're here at this point and I'm in a pretty strong position because I have everything written down as evidence. I don't even understand why she's trying to resist the claim but everything that comes from her solicitor so far has been a complete lie. I don't think they intend to get through to the open PH, just let me sweat and hope I'll drop it in between I think. The judge has already agreed to strike out their claim at PH if they can't produce evidence to collaborate their lie which I know there can be no evidence of.

I've claimed a years wages, the median for mat discrimination injury to feelings, no contract of employment, loss of statutory rights, 25% for failure to follow ACAS code of practice and daily interest since the event. All in all about 30k, I don't expect them to take into account the 25% or interest into any settlement offer but if you don't ask you don't get eh?!

Finally I know you make reference to redundancy but there was no correspondence to say anything about redundancy/putting me at warning/putting me at notice/redundancy payments etc, just that my job was relatively new to the company and it was changing all the time. I wasn't at all surprised that it had been streamlined and improved whilst I was away having my baby, so I don't consider it to be redundancy. It's more that she has just made it impossible to return to my job but I can't claim constructive dismissal as I was only there 1 year 11 months... pah!

DiscriminationClaimant17

Sorry, the last thread fizzled out and I've been quiet for a while.

Yes, the discrimination was something that occurred by phone in not letting me return because I had children and childcare to arrange basically.

Comms69

DiscriminationClaimant17 wrote: »

Sorry, the last thread fizzled out and I've been quiet for a while.

Yes, the discrimination was something that occurred by phone in not letting me return because I had children and childcare to arrange basically.

Im unclear if there was actual discrimination.


When you say the childcare was not suitable, was that because it would affect the hours you would work?