Secondments contract, pregnancy and maternity leave

[Cornwall73]

I work for a local authority (B) and my substantive post has been deleted, however I was able to secure a secondment to another authority (W) until 22 April and B continue to be my employer invoicing W for my salary. W agreed to extend this secondment to the 22 October and issued a renewed secondment agreement to this effect. I have both email and verbal agreements from B and W that all parties are happy with the extension, however I am the only one who has signed to date.

At my 1-2-1 today W encouraged me to sign the agreement and not to wait for B to do so which I duly did. At the end of the meeting I informed W that I am 12 wks pg with twins. I am beginning to show, there is a limit to how many jumpers I can wear in a hot office and I don't want to continue lying about medical appts.

W was nice and congratulated me but said that he would now seek HR advice to retract my secondment agreement and just extend it to June when I go on maternity leave and not Oct. He said he does not want me on maternity leave whilst working for them due to budgetary implications. He suggested we both seek HR advice from our respective people.

i have mentioned that employment law protects discrimination against pregnancy and the limiting of opportunities or unfair treatment due to the condition. Also, that he 'needed' me until Oct at the start of the meeting and now he wanted to limit my time with the organisation!. He said that a secondment agreement is not the same as an employment contract and hence did not apply in this situation. The maternity leave was for B to sort out and the fact that I had no substantive post to return to may affect my eligibility for maternity pu.

I have sent an urgent email to HR at B to check all this out but have not heard back yet. I also called ACAS and they confirmed my brief reading that I cannot be discriminated against.

my questions are:
- is a secondment agreement covered by employment law as an employment contract would and hence W cannot just reissue the agreement due to me being pregnant?

- given that the only reason I am employed by B is because of the secondment and all parties had agreed to extend to Oct mean that B are liable for me until then even if W does not want me beyond June now?

Help!!!

[Eloise01]

Re: Secondments contract, pregnancy and maternity leave

Of course you can be discriminated against - just not by your employer. And therein lies the rub - the organisation for whom you carry out work is not your employer. A secondment agreement is not a contract of employment - your contract of employment lies with your employer. If the secondment agreement is legally enforceable, and it is a significant sized "if", that is a matter between your employer and the organisation you are seconded to - there is some form of contract for service existing between the two organisations, in that (W) is paying (B) for your services. Contracts for service are "internally" regulated - they are an agreement between the party providing the service and the party paying for the service, and the terms of that agreement are whatever terms they contract, and between them. Your "signature" to the agreement does not make you a party to it - they are, in effect, being "polite" and including you, but you have no control over or power to enforce that contract.

Your employer is probably not liable to continue to employ you if the secondment comes to an end. There is no substantive position for you to return to, so redundancy processes apply. A question may arise as to how far through those processes you may be - local authorities have clear policies for people at risk, and you may not yet have exhausted those. If you have not, then those would still apply to you and should be followed.

That said, this is the public sector, and sometimes (although not as often these days) they are reticent to operate just to legal standards, but will go beyond them. As things stand, the two organisations may come to some sort of agreement as to what should happen which will satisfy you. We do not yet know what either HR will say - nor what may happen when they communicate with each other.

[Cornwall73]

Re: Secondments contract, pregnancy and maternity leave

Thank you for your reply.
It is what I dreaded - that the law applies to my employer but not to the secondment host.

I am currently on a long term notice in terms of my redundancy so when my secondment finishes my employment contract with B will end.

I am yet to hear in full from HR at B. I picked up a voicemail this morning asking me not to panic and that W should not have said the things he did about changing my contract following my news. However, I have emailed her some further questions regarding where W stands in terms of employment law and the fact that it is a secondment. I am expecting a similar answer to yours.

Given that a contract until Oct 2013 was issued and I had verbal and email agreement from B and W for it does this make B (my employer) have to keep me contracted until then even if W wants to terminate my secondment earlier? If B agree with W to end my secondment and employment contract sooner is B discriminating against me due to my pregnancy?

[Eloise01]

Re: Secondments contract, pregnancy and maternity leave

No - any contract can be terminated by notice, and a secondment contract is not an employment contract. B has already put you on notice of redundancy, and that was not for any reason connected to the pregnancy, so they are not discriminating on those grounds. That employment contract is the one that operates in law in this matter. B has no unilateral control over the secondment contract - it is mutally agreed but they cannot force W to second someone if they will not. However, as I indicated previously, and HR have said, do not panic yet. It isn't productive as it won't change anything! More problems get solved by things that are not in the law than things that are! Not always, so it is no guarantee, but I should imagine that there are things that can go on in back rooms that may resolve this.