Employment contract problems

[fluffyducks]

Hi Everyone,


I work for quite a big company and I am going to go on maternity leave later in the year. I have worked for the company for a number of years. When I joined, my employment contract listed certain policies as "contractual policies". This included the maternity policy. A separate part of the contract stated that two specific policies might be amended from time to time, but no mention is made of the maternity policy.


Since I joined, the maternity policy has been revised negatively, including that women on maternity leave will only get 50% of their bonus (whereas it used to be 100%). Plus now employees need to come back to work for a full year before being able to go off on maternity again.


I have taken advice from an employment lawyer who has told me that my claim is strong and that my company is resiling on my contract. I have raised the issue internally with HR and they have responded to say that their position is that the maternity policy is not a contractual policy and that they have the right to update it (referring the the clause which I mention above which does not specifically mention the maternity policy).


I still need to talk to my line manager to say that I am disappointed with the company's approach. To up the ante a little, my plan is to also ask HR for a letter setting out the company's position and specifying when they reached their decision.


However, I am unsure whether to take it further. Basically I am worried about how taking things further might affect my career at the company. I like my job, I like the company and I don't really want to have to move. Plus my job is quite specialised so if I move my new job is likely to be less interesting and could pay less. But, I am angry that the company is not listening to me and is trying to screw me over and take away half my bonus.


The only other thought I had is to propose a mediation to deal with the problem. Perhaps that might make them see sense? But maybe not.


Anyway, does anyone have any suggestions or experiences they can share to help me?


Thanks!

[ULA]

Re: Employment contract problems

In my opinion if you have your original contract of employment that clearly states that the maternity policy that was in operation at that time is contractual and that it was not one of the two policies that could be amended then, unless they have agreed an amendment to it with you (and any other female employee who would have been eligible to that policy), then this should be the policy they operate to cover your maternity leave.

It would be really helpful if you happen to have a copy of that maternity policy, if not you will have to hope that the HR department keeps copies of old versions of their policy documents in order to prove the point.

Just to pick up on the point about having to be back for a year before maternity leave can be taken again this is incorrect.

[fluffyducks]

Re: Employment contract problems

Thanks for your response Ula. The company purported to chane the policy by sending out a new one. But no one was asked to sign anything to accept it. Also, I have the 2012 policy which has the same bonus terms as the 2009 one so I'm in a good position on that front. Plus it would be surprising if they claimed they couldn't find the 2009 policy now. I'm interested in your views on the one year back at work part of the new policy. It does sound as if my company is trying to take liberties which is disappointing at best. I am going to see what they come back with in writing and what rhey do next.

If anyone else has any thoughts please let me know!

[ULA]

Re: Employment contract problems

On the point about having to be back for a year before someone goes on maternity leave this is not correct. Qualification for maternity leave is dependant on the person having a contract of employment - it does not matter how long the company has employed them for, and giving the required notice which is at least 15 weeks before the baby is expected confirming:

• the date the baby is due
• when they want to start their maternity leave - they can change this with 28 days’ notice

An employer can’t refuse maternity leave.

[fluffyducks]

Re: Employment contract problems

Ula, I realise that my original post was confusing. Actually, it's not that they want to deny me maternity, it's that they will not give me the full maternity entitlements (under the new policy) unless I come back to work for a year before I go off again. So presumably they would give me statutory pay. In the old policy there was no specific time that people had to come back to work in order to qualify under the policy.

[ULA]

Re: Employment contract problems

Sorry to misunderstand. Your company has enhanced maternity provisions which gives an employee more than the statutory requirements. It sounds like what they have done over the years by amending the maternity policy is to reduce these benefits -i.e. the bonus has reduced from 100% to 50%. What they are probably saying is that to get these enhanced maternity benefits for any maternity leave then an employee has to be back to work for a year between these periods of leave.

Enhanced maternity benefits are down to the company to decide what they offer and they can be amended, however the main issue here is the fact of whether the maternity policy you were notified at the time of signing your contract of employment was contractual or not. Changes to contractual policies should be negotiated and agreed, non contractual policies can be changed by the company without such requirements.

I would suggest that you ensure that you have all your paperwork i.e. your original contract of employment containing details of the maternity policy in operation at the time clearly indicating that it was a contractual policy and then have a meeting either with your manager or the HR department and see what the outcome is.

[fluffyducks]

Re: Employment contract problems

Thanks for your further advice. I'm taking it forward (slowly) with my company and I will see where I get to. Sadly, if they keep up the strong "you're wrong" mantra it will be very difficult for me to get a different result unless I call in my solicitor, which will most likely mean I will need to leave the company (or else I will suffer reputational difficulties at the company). But, I will see how it goes!

[mariefab]

Re: Employment contract problems

'The company purported to change the policy by sending out a new one. But no one was asked to sign anything to accept it.'

Did you receive a copy of this at the time?

[fluffyducks]

Re: Employment contract problems

I can't remember to be honest. The company might have sent an email saying it was updated, or just posted a message on out internal website saying it had been updated. But no one was asked to sign anything.

[mariefab]

Re: Employment contract problems

Do you know, roughly when the policy was changed?

[fluffyducks]

Re: Employment contract problems

The new policy was introduced in 2014.

[mariefab]

Re: Employment contract problems

Are you sure that you were not notified by email, or otherwise, of the change in 2014?
Is there anything in your contract/handbook/etc. stating that changes may be posted on the internal website?

[fluffyducks]

Re: Employment contract problems

I can't be 100% sure. It's possible that the change was made and I just got to hear about it from other employees. Unfortunately I don't have access to my old emails to check. But nothing in my contract to say that the maternity policy can be updated "from time to time" or that it can be updated by being posted on the internal website. I think the key really is whether the wording of my specific contract means that the policy is contractual (in which case, unless they got me to sign something at the time, it would not apply; I definitely did not sign anything) or non-contractual (in which case it's probably ok for them to just change it on the internal system and not notify people anyway).

I'm pretty clear on the law now and as an employment solicitor has looked at my contract and given me advice I think I have a strong argument that the maternity policy is contractual in my case. I am still unsure about how to get my company to recognise this without it affecting me internally. There is no easy answer I guess.

[mariefab]

Re: Employment contract problems

'I think the key really is whether the wording of my specific contract means that the policy is contractual (in which case, unless they got me to sign something at the time, it would not apply;'

I disagree.
If your employer decides to make a contractual change they are obliged to let you know about the change. They do not require your signature. If you objected to the change it should have been raised at the time. By not doing so, you accepted the change by conduct, or inaction.

Is it an annual bonus? If so, what percentage of the bonus year will you have worked by the date that your maternity leave starts?

[fluffyducks]

Re: Employment contract problems

Ok my solicitor says that a contractual change must have offer, acceptance and consideration like any contract. They made me sign things before, e.g. When my employing company changed.

But thanks for your comments.