Q&A - Can employer demote me for taking maternity leave during probation period?

Q: I was promoted to a new position within the Civil Service which was subject to a two-year probationary period. I went on maternity leave within the two-year period and have now received a letter which says that I am now being demoted as I have failed to complete my probationary period within the allowed time. Can my employers do this?

A: A decision has recently been issued by the European Court of Justice in the case of H v Land Berlin which is very relevant to your question. That case (which concerned a German law) concerned Clauses 5(1) and (2) of the revised Framework Agreement on parental leave, set out in the Annex to Council Directive (EU) 2010/18.

The European Court of Justice has generally ruled that when the courts of any EU member state apply their own domestic law, they are bound to interpret that law, so far as is possible, in a way that is consistent with any relevant Council Directive. These directives continue to underpin our legal system for some time.

In this case, the Court decided that the German law requiring a two-year probationary period was an infringement of the revised Framework Agreement on parental leave. This was because, unless the probationary period was extended, it was not possible to see whether or not the newly promoted manager was suitable before the post could be assigned permanently. This decision means that your employers may well have acted unlawfully. This area of law is very complicated however and we would recommend that you contact an employment law specialist for further advice.

(Published 02/11/2017)

Robert Williams

Robert Williams

Partner and Complaints Handler

Partner and Head of the Civil Litigation, Personal Injury and Dispute Resolution team in Wrexham