right - my boss is discriminating against me, can anyone give me some legal advice please?!

[bohemianbint]

Hello,

I posted this last week, and as more was said yesterday I got my boss to clarify my situation. And he's screwing me over.

I'll try to explain as concisely as I can; pre-baby I was paid a basic salary which isn't really great but I took the job on the understanding that I would be working alongside my boss, who is a consultant, and I would be providing copy writing services to his clients, who I invoiced seperately. I had to set up a business as a sole trader to do this. This is how I made my money.

Having just gone back to my job after a years mat leave, there's been comments from the guy who replaced me that I'm not doing the same job anymore. I wanted to hear this from the organ grinder so I took my boss to one side this morning and asked him to clarify that I had returned to the same job and that I would still be working alongside him and writing manuals. (I signed a contract saying that I would be returning part time and that other than my hours, nothing else would change.) He said no, that may come back into my job description later but not for now.

This leaves me skint. I knew I'd be on less money but without the extra earnings I'm earning just over minimum wage and spending half on a childminder. Here's the main points:

1. Blatantly I have not returned to the same job. My job previously involved me working 9-5 writing material for clients, and occasionally doing in house copy. Apparently now my only duties are in house copy.
   
   
2. Boss said extra work was a bonus and was not in my contract. It is in my contract under a heading marked "extra earnings potential"
   
   
3. Boss has basically kept on my replacement and has effectively demoted me.
   
   Can anyone please offer me some advice? This is wrong, isn't it? I'm not sure what the next step is, I've spoken to acas but they can't get involved with the specifics apparently...?

[bohemianbint]

Oh, can I also point out that when I went to see him to arrange returning to work, he said: "we'll see what having a baby has done to your brain when you get back."

I almost don't care about teh money, I jsut want the smug bastard to get his comeuppance!

[RubySlippers]

have you spoken to ACAS and the Equal Opps Commission

[bohemianbint]

yup, spoke to ACAS but they can't get into specifics...

[RubySlippers]

have you kept a record of all his inappropriate comments?
He sounds like a nightmare

[RubySlippers]

CAB had loads of good advice when i was going through my "redundancy"

[bohemianbint]

Cheers - I'm going to try to get an appointment with the CAB but it's murder trying to even get someone to answer the phone, never mind getting an appointment! I really shoudl have kept a diary of all the sexist racist crap - actually, thinking about it, I might still have a slightly racist and very Tory email he forwarded to me before I went on leave...

[Tinker]

I thought that you only had a right to return to the same job if you returned from maternity leave before 6 months. This may have changed and/or not be quite applicable here - I hope so. But this principle may have been challenged since seems to be obvious sex discrimination since it's mostly women who are goingto be absent for over 6 months. Apologies if this is not quite relevant. And your boss sounds horrible

[bohemianbint]

I just found this:

"Return from AML
the right to return from AML is set out in MPLR Regulation 18. As with OML the employee is entitled to return to the same job that she was employed in before her absence
for the purposes of return from AML 'job' is defined in MPLR Reg 2(1) as 'the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed'
even though an employer can move a woman to another job after maternity leave where it is not reasonably practicable to allow her to return to her old job, it will be sex discrimination if her new job is less favourable and this is related to her absence on maternity leave. For example, if the employer chooses to move a woman to other work if, for example, the employer prefers her maternity locum, this will be sex discrimination as it would not have happened but for her absence on maternity leave. It is also likely to be adetriment or automatic unfair dismissal contrary to s.47C ERA and s.99 ERA respectively "

so surely he's in the wrong?!

[Tinker]

This might be useful

[RubySlippers]

keep it all BB!

[RubySlippers]

flowerybeanbag is an HR guru
hopefully she will spot this thread

[nightowl]

cab are hard to get hold of but very good, they won me a case of sex discrimination

[smittenkitten]

Hi BB. It does sound like you have a strong case, but the slightly ad hoc nature of the separately invoiced work does need to be looked at by a professional. I suggest you get confident of your ground, then raise a grievance. You can do your diary of sexist comments retrospectively, though obviously it's better the more up to date it is. Note everything, time, place, who else was present, were you at your desk, standing up etc etc. The richer your version is in detail the more convincing it is. I guess you work for a small company so you will probably have to take this to full on legal action to get any joy. Good luck!

[bohemianbint]

Thanks everyone for your help! Smitten - you're right, it's a very small company and the person I need to take the grievance to is the person causing it, ie boss! It's all family as well, him, his wife, his daughter and only 3 non-relatives. Bloomin nightmare!

[bohemianbint]

oh, and what makes me really angry is that I went out of my way to make life as easy as possible for them, and I told them I was pregnant very early on so that they would be able to make arrangements. And this is how I get repaid! I wouldn't mind but he didn't make it clear, should he not at least have told me that I would no longer be doing the projects, rather than make me raise it after finding out from my bloody cover? What a total twunt! Am getting angrier by the minute...

[nightowl]

i was in the same situ bb, when it came up in tribunal i was grilled by their guy on, if i was so unhappy, why had i never made a formal complaint? yep, who to? the bosses wife? brother? second cousin's cat?! really awkward in a family company.

[bohemianbint]

But you won, Nightowl? That's ace! I knew it had the potential to be a nightmare workign for a family but I had no idea how much. To be fair, the other two are nice enough but related to him therefore must share or at least condone some of his crappy behaviour...

[bohemianbint]

here's another question: assuming I took employer to a tribunal, and won, what would the outcome be likely to be?

[bohemianbint]

bump!

[flowerybeanbag]

hi bohemianbint
It doesn't matter whether the extra work was specifically outlined in your contract, if that's was the work you were doing most of the time for a significant period of time, then that's your normal job, and similarly the money you were getting is your normal salary.

You are not entitled to return to the exact same job after AML if it is not reasonably practicable for you to do so.
However if your boss has kept the guy on who was doing your job while you were away, that means the job is still there, work is still available so you should be doing it.

When you say you signed a contract saying you would come back on reduced hours but nothing else would change, when was this? Was it prior to you going off on maternity leave, in other words did you arrange with your boss before going off what hours you would want to work when you came back etc?
If as a result of your maternity leave you are now doing a different, lesser job in terms of status and financial reward, but the work you were doing beforehand is there but being done by someone else, you are being discriminated against, so I would say you have a good case.

You do need to get proper advice from someone who can look at your contract, both your original one and the thing you signed about coming back after maternity leave. Persist with the CAB, they shoud be able to refer you to someone who can help you, often solicitors will offer a free consultation, and there are often free legal clinics you can go to as well, but your local CAB will be able to point you in the right direction.

In terms of going to a tribunal, difficult to comment without knowing more, I would not like to comment too much on your chances of winning etc without seeing all the paperwork and hearing all the details. However compensation for sex discrimination is not capped but this explains how it is calculated in the event of a successful claim.

I would put in a grievance in writing, here is the basic statutory grievance procedure to follow if there isn't a more detailed procedure where you work. Basically you have to put it in writing and your boss has to meet with you to discuss it. Doing that will ensure no one could hassle you at a tribunal about not having raised it as an issue.

In the meantime do try and get some proper legal advice giving all the details about your employment and taking all your contracts and paperwork, it is not necessarily as straightforward as some, so it's important someone looks at all this before you put in a claim. You can certainly put in a grievance immediately though.

[bohemianbint]

Hi flowerybeanbag,

Cheers so much for all the info and taking the time to reply, really helpful stuff!

Basically, the contract that I signed was a month ago, just after arranging going back. It said:

"When we met on Monday 18 June 2007, you asked to return to work on a part-time basis and this we are happy to accept.

The purpose of this letter is to confirm your amended ?Terms of Employment? for when you return on July ?? 2007.

Your working hours are to be each Tuesday and Wednesday, 09.00 to 17.00. You will continue to be paid on the 20th of each month at an hourly rate of £6.60 per hour. This is the hourly equivalent of your existing salary.

Your holiday entitlement will be calculated on a pro-rata basis.

All other aspects of your Contract will remain in force.

It is agreed that your working hours will be reviewed on January 1st 2008."

From what I can make out his only defence could be that it "isn't reasonably practicable" for me to do the work in 2 days a week...However, his daughter (also recently returned from mat leave) is doing it whilst only being in the office 1 day a week.

My cousin and a friend are both solicitors and are going through my contract at the moment but I'm thinking I'm going to have to give a written grievance and see what happens. Is it customary to give a paper letter or is email better so it can be proved that it has been sent?

[flowerybeanbag]

Doesn't matter, paper letter is fine, you can hand it to your boss or send it recorded delivery and keep a copy for yourself. If you are at all concerned he might claim he never had it, send an emailed copy as well.

Sounds as though reasonably practicable would probably be his point of view, but as you say, there is a precedent, and also, why could you not do the same work, only less of it, iyswim?

Sounds as though you have some legal advice to help you though which is good. Do put in a grievance anyway, you are unlikely to get anywhere I would think, bearing in mind the circumstances you are working in, v small company etc, family business etc, but do it anyway so it's all on the record.

good luck and keep us posted!

[bohemianbint]

eeek, you mean I'm unlikely to get him to resolve the matter or unlikely to get anywhere with a tribunal?!

[flowerybeanbag]

don't panic! I meant unlikely to get far with an internal grievance, just simply because, from what you said, the only person you could put the grievance to is him, there is no one else to hear it and no different person to appeal it etc. So he would effectively be deciding himself whether he was right or not. Or am I wrong?

You never know though, just the fact of getting a formal grievance about it might shock him a bit and if you phrase it right and include all the stuff you have said here, and the legal bits you have found and I have mentioned, it might well scare him into sorting it out pronto. So definitely worth doing from that point of view and also just to register the issue formally.

As I said, I wouldn't want to comment about your chances at a tribunal without seeing the ins and outs. It does sound from what you've said like it might be a good case though, and hopefully as I say, your boss might see sense either at the sight of a formal grievance, or if that doesn't work, at the sight of a tribunal claim form.

[bohemianbint]

Phew...Cheers flowery. Yeah, you're right, he would be deciding himself, and he's such a big head I can't see him backing down. Luckily he's also a total idiot when it comes to knowing anything re HR (I had to set him straight and stop him diddling me out of 8 days of leave accrued whilst on leave!) so hopefully he's totally screwed it all up.

I'm definitely going to put in a grievance, going to start writing it now. Bit concerned as to what work's going to be like once I give it to him but can't be helped really.My cousin (lawyer) thinks it sounds promising, plus I spoke to a good friend (also lawyer and married to another lawyer who specialises in employment law so really am quite lucky!) who has flagged up the fact that it might be dodgy that he made set up a company to invoice clients. I'm not sure but he says that treating me as a contractor in law but an employee in reality is a bit dodgy. I think?

Ah, anyway, thanks again for the useful feedback. Am off to draft a wee letter...