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Constructive dismissal following maternity leave.


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Hi,

 

I'll try to keep this as brief as possible but I'd really appreciate some advice on this if anybody would be so kind.

 

A friend of mine had a baby last year and had some trouble towards the end of her maternity leave. Basically she was employed as a chef in a pub but her employer informed her that this position was no longer available for her return to.

 

The reason given was that the recession had meant that the employer felt she had no option but to step into the role of chef "in order to keep the business afloat". (shortly before going on holiday for two weeks and employing a 17 year old as a part time waitress).

 

My friend heard nothing more and was advised by ACAS to write to the employer for further details. The employer responded by telephoning my friend and inviting her down for "a chat". During this "chat" the employer offered my friend a 6 hour shift as a barmaid (she previously worked 12 hours as a chef). My friend declined as she felt this was a demotion and the times of the bar job weren't helpful to her and her partner who needed to juggle time with their new son between working various shifts (paying for childcare really wasn't an option as both parents work part time on relatively low wages).

 

Two days later a letter arrived from the employer stating that as she had declined the job offer, she had "effectively ended your contract with us". Despite the fact there was no contract in the first place.

 

The employer also included my friend's P45 which was dated four days BEFORE this "chat" (the employer has effectively stated this in her response).

 

My friend subsequently had her claim for unfair dismissal accepted by the Employment Tribunal and the employer has since done her research and is now desperately trying to wriggle out of this with bizarre claims of an entirely different version of events.

 

Anyway, there's a lot more to this story but I won't go too deeply into it just yet. I have a basic understanding of employment law but I'd appreciate somebody else's opinions on this because the maternity aspect isn't something I know much about really.

 

Thanks in advance for any replies.

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a) a contract exists, in which your friend worked at the pub and was paid in exchange for the work she was doing.

 

b) she benefited from Ordinary Maternity Leave (OML), therefore classifying her as employee.

 

Consequently, she is entitled to return to the same job in which she was employed before her absence, on terms and conditions no less favourable than those which would have applied if she had not been absent.

 

What was the nature of the chat?

Edited by Bigredbus

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Acording to the employer's response this chat (which should surely be deemed a grievance meeting) consisted my friend being told that her old job "really no longer existed as I had taken on the role of full time chef in order to keep the business afloat"

 

They employer goes on to claim that she offered my friend a bar job consisting of the same hours and days as her job as a chef which would be 12 hours.

 

My friend maintains that she was offered 6 hours of bar work but with a shallow promise that the employer might be able to give her a few extra hours here and there.

 

The offer was declined by my friend at this meeting and this forms the basis of the employer's response.

 

In short, the employer claims that because she offered a bar job consisting of the same hours, my friend's decision to decline is effectively handing in her notice which means she is not entitled to any redundancy pay.

 

My friend was accompanied by her boyfriend at this meeting and both assure me that she was offered only 6 hours. Of course the employer has changed her story by the time of writing her response to the claim but I suppose that's to be expected.

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Oh Christ, not you again.

 

 

Ha ha.

 

Hi mate. Yeah it's me again. And unfortunately it's the same employer again. I didn't want to complicate my last thread by mentioning this one but I thought I'd throw it open to you smashing folk.

 

I'm not representing or anything (mainly because her mother is bigger and more scary than me) but I'd like to give her some handy info if I can source any here.

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Does anybody know what the correct procedure an employer should follow regarding the provision of a P45 to an employee? In this particular case the employer sent the employer her P45 (part 1A) but it transpired yesterday that the employer didn't send the other parts of the P45 to the tax office. The staff at the tax office confirmed this. Does this mean the employer hasn't technically been dismissed and is therefore still employed by the employer?

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