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Maternity Leave & Returning to work, with a twist!


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Hello All,

Some much needed advise please on behalf of my wife who is currently on Maternity leave and taking 39 weeks entitlement due to return to work in June.

She has engaged with her employer (small but well established business) about returning to work and has requested a part time role. The owner of the business has advised her that this isn't for necessarily a problem for him; however has announced he is going to sell his business. No-one has actually bought the business yet but it is expected to go on sale shortly and sell in maybe 4 months or sooner.

My questions/concerns are that what legal rights does my wife have and what legal obligations would any new owner have with regards to:

1) Continuation of employment post maternity leave based on the existing full time contract

2) Continuation of employment post maternity leave based on a new part time contract

With regards to point 2 - would this be different if the current employer agreed a new part time contract in advance of the any new buying the business (although they probably wouldn’t )?

Any advice or guidance is greatly appreciated

Many thanks

Mr Penguin

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This link may help with 1.

 

Responsibilities to employees if you buy or sell a business | Business Link

 

With 2 it's worth trying to get the current employer to agree, in writing to the flexible working but it can equally be applied for with the new employer. See link below.

 

Flexible working - the law and best practice | Business Link

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Many thanks mariefab - this pretty much covers it I think. The current owner has pretty much already verbally said they would change her hours (probably thinking that they would sound more sympathetic and not realising that they will need to deal with request and not the any new owners).

According to the procedure for requesting flexible working, the current employer will need to consider any officially submitted request and meet within 28 days. What recourse is available if they decline the official request although they verbally agreed more or less that they would accommodate it? :-|

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  • 2 months later...

Update:

Although my wife didn't submit a request for a change to working hours using the official form, she did request it via email and has been in communication with her employer. The employer had constantly advised her that the decision is 'not up to them' but is the decision of any new owner of the business. This seems completely against what we’ve been told here. My wife did have a face to face meeting with her employer and did reiterate her request for a part time contract to which the employer then advised he could either negotiate a part time contract with her now or wait until the any new owner takes charge and then help her to negotiate one with them. My wife made it clear she would want a part time contract negotiated now. The owner of the business had since delayed negotiating a new contract despite several further requests to address it.

 

Since this time the business has been sold.

The new owner has not yet been introduced to the business or a date given when they will take up the reigns but I need to understand what my wife's options are. It seems she has been treated unfairly and the negotiation of a new contract delayed so that the exiting owner would not need to deal with this issue. I have a fear that the new owner may reject a new contract meaning that my wife will not be able to continue working in her current job - does this mean she would have to resign and what recourse is there for her against the former owner?

Please help! :confused:

Edited by mrpenguin
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If we go back to your original post and have a look at the facts.

 

Your wife has taken 39 weeks and now continues with unpaid ML :

 

The rules are that you are allowed to return to work after 26 weeks paid ML to the position that she was in before the ML.

 

Post 26 weeks the rules change slightly up to the maximum of 52 weeks where the employer must continue to hold open a post that is of equal standing (if it is not possible to hold the exact original position).

 

I think the old owner is burying his head in the sand a little - he can and should of - worked with your wife to come to an amicable agreement on working hours.

 

I say this because the new owner under TUPE must take on the employees with the contract at the time of the sale of the business.

 

Therefore as there has not been any negotiated settlement on working hours I suggest your wife's position and standing with her employment is that of the 26 - 52 week scenario as above and continues her rights as such.

 

In short she should start her request for part time hours again, with her new employer - she has a contract and the new employer must honour it and also as such, must accept any request for flexible working time post pregnancy.

 

Beau

Edited by BeauBrummie

Please note: I am not a lawyer and as such any advice I give is purely from a laymans point of view;-)

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If we go back to your original post and have a look at the facts.

 

Your wife has taken 39 weeks and now continues with unpaid ML :

 

 

Hi thanks for your response - My wife is only taking the 39 weeks ML which is due to end in June and is intending on returning to work then.

 

Is there no recourse for the existing owner for not negotiating or at least addressing the issue?

 

Thanks

Edited by mrpenguin
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If we go back to your original post and have a look at the facts.

 

Your wife has taken 39 weeks and now continues with unpaid ML :

 

The rules are that you are allowed to return to work after 26 weeks paid ML to the position that she was in before the ML.

 

Post 26 weeks the rules change slightly up to the maximum of 52 weeks where the employer must continue to hold open a post that is of equal standing (if it is not possible to hold the exact original position).

 

I think the old owner is burying his head in the sand a little - he can and should of - worked with your wife to come to an amicable agreement on working hours.

 

I say this because the new owner under TUPE must take on the employees with the contract at the time of the sale of the business.

 

Therefore as there has not been any negotiated settlement on working hours I suggest your wife's position and standing with her employment is that of the 26 - 52 week scenario as above and continues her rights as such.

 

In short she should start her request for part time hours again, with her new employer - she has a contract and the new employer must honour it and also as such, must accept any request for flexible working time post pregnancy.

 

Beau

 

Sorry Beau, one further question: are you saying that even though she is may be doing less hours, the employer has to hold open a role of equal standing/pay?

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Hi thanks for your response - My wife is only taking the 39 weeks ML which is due to end in June and is intending on returning to work then.

 

Is there no recourse for the existing owner for not negotiating or at least addressing the issue?

 

Thanks

 

The new employer should look at and explore in full the prospect of accepting your wife's reasonable request for flexible working. I cannot see why the new employer would not look at the request favourably?

 

If the employer flatly refuses to accomodate your wife's request then a more serious option for her would be resignation and take the employer to an ET for a constructive dismissal. Your wife would be seen as the injured party and a possible discrimination claim due to her recent pregnancy.

 

Beau

Please note: I am not a lawyer and as such any advice I give is purely from a laymans point of view;-)

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Sorry Beau, one further question: are you saying that even though she is may be doing less hours, the employer has to hold open a role of equal standing/pay?

 

Yes, if your wife wanted to go back to the job she was originally doing but could not because the employer was unable for operational reasons then the T&Cs must say the same.

 

This link is quite informative,

 

 

Maternity leave: returning to work : Directgov - Parents

 

Beau

Please note: I am not a lawyer and as such any advice I give is purely from a laymans point of view;-)

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ok, understood. Thanks again for your advice. We'll see how things pan out. There is no reason the request should not be seen favourably, my wife has perfect employment record and is well liked by all those in the business.

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  • 1 month later...

UPDATE:

Since the last post my wife submitted a formal request for flexible working hours. About a week later her employer has responded in writing advising that they will agree to a compromise and has proposed a trial period to assess if there will any determent to the business by my wife being part time. The trial does not mean that she will automatically be moved to part time hours at the end but is then subject to a discussion as to whether your application will be accepted.

From reading up on the direct.gov website this seems a fair proposal and solution however, I would want to query 2 things:

1) What is a fair & reasonable 'trial' period - current suggestion in 3 months!?

2) Should she request some formal targets or metrics to ensure success is measured as opposed to just leaving it as a 'finger in the air' job as to the end decision - as I have a feeling there may be a sting in the tail as the newer owner of the business will be in post then and so the decision has just been deferred!?

Any thoughts or advice welcome

Thanks

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UPDATE:

Since the last post my wife submitted a formal request for flexible working hours. About a week later her employer has responded in writing advising that they will agree to a compromise and has proposed a trial period to assess if there will any determent to the business by my wife being part time. The trial does not mean that she will automatically be moved to part time hours at the end but is then subject to a discussion as to whether your application will be accepted.

From reading up on the direct.gov website this seems a fair proposal and solution however, I would want to query 2 things:

 

1) What is a fair & reasonable 'trial' period - current suggestion is 3 months!?

2) Should she request some formal targets or metrics to ensure success is measured as opposed to just leaving it as a 'finger in the air' job as to the end decision (mindful that she hasn't had any real targets set previosuly) - as I have a feeling there may be a sting in the tail as the newer owner of the business will be in post then and so the decision has just been deferred!?

 

Any advice or comments welcomed

 

Thanks

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  • 4 months later...

Update:

 

My wife has returned to work and accepted the 3 month trial. During this time the new owner has taken over the business (after being back for about 2 weeks). The new owner has seemed happy with everything and has not made any comments about the reduced hours nor brought up any issues as a result of them. My wife says if anything the same amount of work is now being done over less days!

 

The end of the 3 month period is nearly here and there has been no mention of addressing the situation either to continue the role on reduced hours and offer a permanent part time contract or otherwise. We've taken this as a positive as surely if there were a problem the new owner would be looking to address it asap, or at least out of courtesy set a review date as a heads-up.

 

Some questions:

Should we wait until the 3 months are passed, or longer, before requesting the situation to be reviewed (if it were left long enough would the position automatically be deemed permanent, say after 6 months)?

Where do we stand/what is our position if the new owner advises they do not want to continue the role on reduced hours (we would expect them to quote reasons but no issues have never been mentioned)?

 

Any thoughts welcomed

 

Many thanks

 

Mr Penguin

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What did your wife get in writing from the new employer regarding the trial? Did it mention how any measurement of the success or failure of the trial might be communicated? Was there any mention of a meeting at the end of the trial to discuss? Possibly most importantly, is your wife happy with the new working arrangements and can she see any issues arising from the change from a business perspective?

 

If it is obvious that there have been no problems and no impact on the business, then I see no harm in making an exquiry with the employer as to whether he considers the trial has been successful and request a formal change to the contract. Ultimately though, this is not absolutely necessary and your wife should continue to work under the new arrangements - over time (and there is no fixed period involved) it may be deemed that the employer has accepted the new working hours and the change to the contract has been implied by custom and practice. In a sense, a contract may deemed to be binding if both parties work under it's terms and no objection is raised.

 

It just depends on whether your wife feels that the eployer is likely to be difficult!

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Hi Sidewinder,

 

There were no specified targets are measurements stated in the letter she received confirming the trial period. The letter was written by the former business owner and I suspect he liaised with the new owner before confirming it.

 

My wife is happy with the reduced hours and has not seen any impact to the business as all work is carried out as required. As mentioned, it could be said that she is being more effiecient! lol

 

I also did encourage my wife to make a log of any problems that arose and what was done to overcome them during the trial to support her case if it is argued the problems were as a result of her reduced hours. So far the log is empty!

 

As my wife has only known the new owner for a few months she is not sure as their disposition and whether they will object, although so far the signs are good.

 

I guess we're just playing a cautious game and don’t want to do something that would jeopardise her position when it could be more advantageous to let things continue as they are for now?

 

Mr Penguin

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I would leave it for now.

 

The new business owner would have to accept all employees under the T&Cs which were in place under the previous owner. If he has not seen fit to question them nor discuss when the new hours might be deemed permanent, then I would leave it be on the basis that if there was an issue it would either have been raised by now or will be at the end of the three month period. If you remind him that the deadline is approaching then he may start to study things a little more closely. If it is working as it is, then why rock the boat!

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

DONATE HERE

 

If I have been helpful in any way - please feel free to click on the STAR to the left!

 

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