Question on arguing a discrimination case - different types of discrimination question

[Varanasi]

Hi,

As some people may be aware I am in the process of fighting a case where the CEO of my company has effectively asked me to resign during a flexi-time request time meeting. I was told in no uncertain terms just 3 weeks before I planned to return that I would have to be prepared to travel to Selby possibly for weeks on end as soon as I return. I can't do this. The company knows I can't do this. Earlier on in the flexi-work process my employer has also broken legislation by failing to provide with adequate reasons (no explanations provided and refusal to provide when asked!) why my claim was rejected. I have checked the BERR website on this.

The employment lawyer has consulted me on my case and believes I must raise a grievance ASAP and that I must resign since I can't go to Selby for weeks on end and also because the company clearly asked me to do this is an appeal meeting so that I might resign. I am going to get a second opinion before I resign but I am definitely going to raise a grievance as I can't go back to that company realistically. The CEO has made it clear I am not wanted there so where is there for me to hide?

To demonstrate what I am up against, in the appeal meeting I told the CEO that there is no problem for me to go to London at 8am in the morning and that I have very flexible child care arrangements. The CEO just said 'Your childcare arrangements are your problem. They are not ours!' This was just one example of the sort of thing I have had to tolerate.

The question I have is that I believe that I have suffered indirect discrimination since my boss has unjustifiably asked me to do something that I can't based on my gender. However I am the only woman who does this particular role within the organisation (which in my opinion makes me more vulnerable not less and is indeed why they want to get rid of me) However does that mean I can't claim it is indirect discrimination?

Also if a Company bullies and harrasses someone because they feel they cannot do their role the same way because of their gender would that be indirect or direct discrimination? Or would it be something else? An employment lawyer said that legally deliberately flouting the 'Right to Request' regulations by a) refusing to provide explanations and b) using the 'Right to Request' act as a means to push me into resigning is in itself an act of discrimination. However if this is the case then I would assume that it would be classed as direct discrimination?

I did not have time to discuss these points with an employment lawyer as it was only a 1 hour consultantion. However I think if I am going to raise a grievance I need to understand what counts as discrimination and what doesn't as any mistake at this point might be costly. I am probably going to need to pay someone to help me write it.

Just wondering though if anyone can help shed any light onto this issue ?

[HappyMummyOfOne]

Firstly, I dont think they were out of order to suggest that childcare arrangements are your problem and not theirs as its true. Regardless or being male or female, childcare arrangements are not the responsibility of the company and if your childcare affects the job then they are correct in highlighting this.

However, they have to provide adequate reasons for turning down the flexible requests and you should follow the correct procedure through appeal and grievance first. Get somebody else to go over the flexi time request for you, sometimes its hard to be objective when arguing for hours you want as you only have your own interests in mind.

As for travelling, is it in your contract that travelling is needed? Did you do any travelling before you had children?

I cant see that being asking to travel is discriminating against your gender - if a job requires travel then it shouldnt matter if the role is done by a male or female with or without children.

[Varanasi]

Hmmm.... I think what you would be saying is true only that the response was made when my boss was asking how I'd manage getting to London at 8am in the morning. Surely he is saying then that he is worried I can't do my job so I am right to at least mention the fact that I have flexible childcare arrangements to explain that I can do this.... ????!

I didn't have to do any travelling in the past year of my job and to be asked to go to Selby for weeks on end 3 weeks before I am due to go is out of order!!! I have asked for a different role but get ridiculed when I ask for that. It really would destroy me to be forced to leave my child for weeks on end! Even if I didn't have a case I have to leave my job on that basis I have been feeling very stressed and ill because of this situation ;-(

I would argue that when a baby is very small it is worse for a mother to spend long periods away from a child than it is a man. I am still breastfeeding for example. I think my boss has the right to ensure I can still do my role but I should at least have consulted me on the fact that down to business conditions I would now have to travel up North. They should at least attempt to see if they can find a new role. To tell me that I will have to travel up North for weeks and weeks and not be told when I am coming back (ie the travel could be indefinite) in an appeal meeting for Flexi-work is absurd to be honest.

[HappyMummyOfOne]

If you are serious in pursuing this then concentrate on following the procedure for getting flexible working rather than the fact that you are unwilling to travel due to a new baby.

Although your new baby means the world to you, it doesnt mean anything to your employers and they want the job doing regardless of your personal and family commitments. Its also not fair on other employess if you refuse to travel because you have children - they may have different roles but you would still not be popular.

What hours did you do and what have you asked to do. Have you got a detailed plan as to how it will work? Have you been flexible enough to come to a compromise that suits you both?

Travelling may have been mentioned in the meeting as they are probably still expecting you to do some whether full or part time. It may be one of the reasons they are refusing flexible working. Has your replacement been doing the mentioned travelling in your absence?

With regards to a new role, if there is a vacancy then you can of course reply. However if I am reading your post correctly you want them to "find" a new role, I dont think they are under any legal obligation to do so.

If you get granted your request are you willing to do any travel? If you arent, then you may not get the result you want with regards to flexible working.

[Judy1234]

What does your contract of employment say about travelling? Some allow it and some don't.
Also is there a way you can hire a local girl to come with you on the Selby days/times and the baby so you can feed the baby whilst you're there?
May be one answer is go back to work and call their bluff and show you're better than they are at the work. They may not go ahead with the selby threat anyway.

[Varanasi]

HappyMumOfOne - I have to disagree with you. I took the job on the understanding that I would only have to travel away from time to time - I wsa promised that this would rarely happen, It is due to a restructuring process that would be forced to travel more but my company denies this... and just says I used to be lucky in the past. I have never had to travel up North in over 2 years. It is absurd to say I should have to travel for indefinite lengths of time now I am a mum when I didn't have to do that in the past!!

I wasn't sure whether this is unlawful or not. But it is. And apparentely it doesn't matter what a contract says necessarily as there is also an issue of hidden trust in a contract. Wording like 'you have to do something from time to time' does not mean your employer can do what they want. Most people don't know the law that's all. Have to say a top lawyer who charges many hundreds of pounds an hour ought to know the law! But I'll get a second opinion.

If I had been consulted on the restructure before I had to return to work this would be ok of course. I was asked to provide ideas for project work etc but then had them simply dismissed without explanation. I have asked for a role change but have been ridiculed. But the worst part is to be told just a few weeks before I am due to return that I am faced with conditions of employment much worse than when I left is unacceptable and has potentially leaves me in financial ruin.

This is what the issue is and is more serious than not getting flexible hours agreed to.

[flowerybeanbag]

Varanasi there are two issues aren't there, the flexible working request for which they have not followed the legal procedure in all sorts of ways, and the role you are being offered on your return.

I would agree you need to put in a grievance, I would do it in 3 parts, first the merits of your flexible working request, second the failure to follow the legal procedure and thirdly the role and terms and conditions you are being offered for your return to work.

I think the reasons for the travelling they are mentioning seem a bit hazy, is it restructuring or what is it? You need to request clarification on that. Travel like that which was not previously required would be a change in terms and conditions. But the important question is, would it actually be possible for you not to do this travelling. Is there a role without travelling available? It would not be reasonable to expect them to make a role up out of nowhere. Of course the issues about lack of consultation (was anyone consulted?) and the way they have gone about it are important as well. But you do need to think about what realistic outcome you would be requesting - don't just put in a grievance which is essentially just complaining about everything, also make it clear what you would like them to actually do about all of this.

I'm going to find you some info about different types of discrimination.

[flowerybeanbag]

Have an explore of this information about sex discrimination at work.

[flowerybeanbag]

Oh and important to remember that if there isn't a job more suitable available, you would need to argue that your less favourable terms and conditions were a result of you going on maternity leave. In other words you would be claiming that the increased travelling issue would not have otherwise happened.

This is a lengthy page aimed at professional advisers but if you can wade through it it's not in too legal-type language, gives you more detailed guidance.

[Judy1234]

Also has anyone else been given more travelling or is it just you being picked on because they know you have a baby?

Also do you know what the words used in the contract say about travelling as that might help too if they don't actualyl have a right in the contract to make you travel

[Varanasi]

Thanks Flowerybeanbag. I will look at the link. There has been a reconstruction process but my company hasn't consulted me on it. 2 years and barely any travel and suddenly asked to do that? An employment lawyer reckons I should be able to argue that there has been a basic breach of trust here regardless of my actual contract (which is ambiguous) I am certainly have not even been allowed to discuss a role change. The first time I asked they made me waste my time writing a project proposals document and refused to give me feedback. I mean that is not very nice.

Trust me on this one- there may be a shortage of roles - unproven so far- but they don't want me to come back. There is at least some evidence that the ERA has been used to force me to resign. Lies, contradictions, refusal to cooperate/provide feedback etc.

[flowerybeanbag]

I'm sure you are right about them not wanting you back, you will hvae a good sense of that, but question is are their actions actually illegal discrimination, or more subtle stuff which could add up to constructive dismissal? I think it could be the latter rather than clear discrimination based on what you've said - you'd have to prove that the changes to your terms and conditions would not have taken place if you hadn't gone on maternity leave, whereas if it's more general restructuring the problem might be lack of consultation, poor procedure etc rather than discrimination against you.

It does sound as though the lawyer you've seen is of similar opinion, discussing breaches of trust etc, that would all be part of a move towards a constructive dismissal claim.

I would put in your grievance about the failure to consider your flexible working request properly and according to the required procedure, then do a bit on their behaviour regarding your return to work, lack of consultation etc. Keep a close eye on what they do, make sure you're recording everything, then if the response to the grievance isn't acceptable, you will need to consider resigning and claiming constructive dismissal if that's the way you want to go. It's very tough to prove and it's not an easy process to go through, having to resign etc, but sometimes it is the best/only option and with the flexible working palaver, with some very clear cut stuff about not following the procedure, it's not as tricky as it sometimes is. Often constructive dismissal claims can be based to a huge extent on subjective interpretation of different actions, communications, discussions, but you do hvae some more concrete stuff than that which is good.

[flowerybeanbag]

Oh and regarding your indirect discrimination query because of the travelling being less acceptable for women, have a read here about the 4 elements of indirect discrimination that you'd need to demonstrate - I posted this link very recently and I can't remember if it was for you or not on your other thread so apologies if you've seen it already.

[Varanasi]

Cheers again! I will look at that too.

I remember now that I have been told to argue on breach of trust for cons. dismissal... lawyer did not feel this was ropey in my case. I have also been told to claim discrimination on basis that my maternity situation has been used as a tool to force me resigning under the ERA.

[Varanasi]

FloweryBeanBag,

Do you think I should check my grievance with a solictor?

The main problem I have got with my company is the way I was humiliated in front of the CEO at the appeal meeting. Selby was a threat. The project does probably exist but there are plenty of other consultancy projects even if they can't find me a new role so actually even if bus. circumstances have changed why pick out the one place that really will make my life a nightmare? That is not a nice thing to do because I had hoped my appeal meeting would be to discuss whether I can have unpaid time off to see my son! Instead I was asked all sorts of humiliating questions on stuff that they knew the answer to. My change of circumstances was ruthlessly picked on ie the one thing I'd said would be difficult turned into the whole focus of the meeting. I just don't think its right to ruthlessly exploit the fact I have said it is difficult for me to travel for weeks on end up North in a flexi-work request appeal meeting! This is the bit that definitely relates to my maternity situation. If I'd not been pregnant then I think my boss would may be have still asked me to travel North more often but he would actually sit down and be sympathetic about it and explain about the restructure.... and of course it wouldn't affect me as much anyway. My line manager has always been ok in the past before I said I'd went on Maternity Leave and this is partly why I have been so very shocked at the way they have misbehaved. The worst thing is that recently he became a Dad himself so I never dreamed he'd be like this with me...

There is no doubt the appeal meeting was designed to get me to resign. Since my company realised I wasn't happy with my meeting (made it clear I'd felt bullied) they started to act strangely. I got told a letter that was going to be sent has now been scrapped and that there is going to be an unexpected delay in terms of making a decision???? Suddenly I get told that they will now look at my appeal document after all. I am sure that this is because they know the meeting went too far and panicked.

Problem is that even if there is a shock U-turn my company have revealed to me how very little I am of value to them and the extreme measures they were prepared to take to try and remove me. Of course I will listen to what they say after my grievance but they really are going to have to explain their intolerable behaviour to me whatever the outcome is.

[Varanasi]

FloweryBeanBag,

Do you think I should check my grievance with a solictor?

The main problem I have got with my company is the way I was humiliated in front of the CEO at the appeal meeting. Selby was a threat. The project does probably exist but there are plenty of other consultancy projects even if they can't find me a new role so actually even if bus. circumstances have changed why pick out the one place that really will make my life a nightmare? That is not a nice thing to do because I had hoped my appeal meeting would be to discuss whether I can have unpaid time off to see my son! Instead I was asked all sorts of humiliating questions on stuff that they knew the answer to. My change of circumstances was ruthlessly picked on ie the one thing I'd said would be difficult turned into the whole focus of the meeting. I just don't think its right to ruthlessly exploit the fact I have said it is difficult for me to travel for weeks on end up North in a flexi-work request appeal meeting! This is the bit that definitely relates to my maternity situation. If I'd not been pregnant then I think my boss would may be have still asked me to travel North more often but he would actually sit down and be sympathetic about it and explain about the restructure.... and of course it wouldn't affect me as much anyway. My line manager has always been ok in the past before I said I'd went on Maternity Leave and this is partly why I have been so very shocked at the way they have misbehaved. The worst thing is that recently he became a Dad himself so I never dreamed he'd be like this with me...

There is no doubt the appeal meeting was designed to get me to resign. Since my company realised I wasn't happy with my meeting (made it clear I'd felt bullied) they started to act strangely. I got told a letter that was going to be sent has now been scrapped and that there is going to be an unexpected delay in terms of making a decision???? Suddenly I get told that they will now look at my appeal document after all. I am sure that this is because they know the meeting went too far and panicked.

Problem is that even if there is a shock U-turn my company have revealed to me how very little I am of value to them and the extreme measures they were prepared to take to try and remove me. Of course I will listen to what they say after my grievance but they really are going to have to explain their intolerable behaviour to me whatever the outcome is.

[flowerybeanbag]

So if you hadn't been on maternity leave you feel the need for additional travelling would have been the same? But the only difference would have been you think your boss would have been more sympathetic in those circumstances? I'm not convinced that's sex discrimination tbh, if the change would have taken place regardless then it's not because of your maternity leave, and difficult to see how you could prove that your boss would hvae been more sympathetic if you hadn't recently gone on maternity leave.

But if there are alternative projects you could work on without this travelling being necessary, in other words there is no actual need to change your terms and conditions in this way, that's what you need to focus on - if that's the case then that's what they should be doing. And of course the way they have handled both the change in your terms and conditions and your flexible working request is completely unacceptable.

Obviously you will have discussed this in more detail with your solicitor, and he or she will have more information and insight into your circumstances, this is just my take on it.

From your company's actions since, it sounds as though they may have taken advice and been told they have not behaved appropriately, are making themselves vulnerable and need to redress the situation.

You are right that they should have to explain their actions and how they have treated you, but if they take appropriate action to improve the situation because of advice they have now taken, it will be much more difficult for you to bring any kind of claim, I'm sure you appreciate that. If you want to claim constructive dismissal you'll need to have made every attempt to resolve the situation, grievance etc, then if you get nowhere, resign and claim cd. BUt if the company take positive action to sort out what has happened it would make it very difficult to claim.

Whether you should get a solicitor to look at your grievance is tricky. If you think that this situation is very likely to end up in some kind of claim, constructive dismissal, sex discrimination or about the flexible working, then it might well be worth doing that - if a solicitor has been involved from an early stage and can make sure your grievance raises everything it needs to in the best way possible and nothing it shouldn't, his or her job will be easier further down the line.

On the other hand, obviously that will cost money and if the response to the grievance/to the appeal about the flexible working is more positive, meaning claiming is unnecessary/not an option, you'll be left with a bill.

[Varanasi]

Thanks FloweryBeanBag,

Lawyer reckoned exploiting maternity situation through ERA to try and manipulate a resignation would be seen as a type of discrimination if proven... This guy is hotly recommended apparently so I am hoping I can trust his view.

I think maternity situation at least partly to do with why they want to get rid of me.

Anyhow if my work can offer something reasonable ie role with no travel etc then obviously ok as long as actions are properly explained. However a lot of explaining is to be done. I would be objective and would like to hear CEOs opinions on what he said.

[flowerybeanbag]

I'm sure you can trust his view, and you may well be right about maternity situation being a reason they want rid of you, absolutely.

See how things pan out in terms of their conciliatory actions (if any!), then make a decision how you want to react to that.

[Varanasi]

Cheers - I have just had a final appeal decision. Apparentely I can have unpaid leave but that I would still be expected to travel overnight and although they would try their best to keep it to a minimum there can be no guarantees. Worse the letter states that 'during the meeting that they believed that I had accepted this would be the case'.... No, I was browbeaten , bullied in that appeal meeting and was constantly trying to battle against the CEO. Well if they have received legal advice then it is n't the same as the advice I have from 3 different advisors who have all stated that there is an element of trust in a contract.

Grievance it is then.
My contract states that from time to time I should have to go anywhere within the country or overseas. By my company's logic it would be ok to make me work in Timbuktu!
That is precisely why there is an understanding of trust in a contract.

So cross with my employer!

[Varanasi]

Actually its even worse than that. I have been told I can have 25 unpaid days off but not as a 4 day week. I had requested to do some 4 days weeks. So that is totally useless to me then. Just states I can have what I am legally entitled to anyway... ie 20 days unpaid and x amount of emergency days.

My company really are daft then. They have said No.

[flowerybeanbag]

Are you meaning what you are legally entitled as in parental leave, which must be taken in blocks of a week - is that what they are offering you? Sorry if I'm being thick!

[Varanasi]

Slightly better than that - basically I will get 25 unpaid extra days holiday but it can't be guaranteed I can use them as a 4 day week. It is better than nothing. It isn't a huge gripe. It will still be added as part of my grievance though.

They have also made another concession which is that they have arranged me to do a first job in London. I welcome this move but it still makes me wonder why the CEO felt he needed to 'threaten' me with sending me to Selby in the first place. I think this concession has been made after I complained bitterly to my management about the fact that I might be faced with a long overnight stay on my first role. Of course, although I suspect that they may just be granting me a concession because they have to, it is better than them carrying out the 'threat' and really making me go to Selby.

They are not exactly out of the doghouse though. They are still insisting I may have to do long, overnight stays in the future which could be for indefinite lengths of time. That is unacceptable due to restructure, fact I didn't do that in past etc... I still have the same fundamental issues with trust and the way my flexi work request was treated (terribly!) and all I can do is see how they respond to my grievance. Its not great to be at loggerheads with the CEO and line manager when they are the only managers in the company! This is the one reason why this situation may be difficult to resolve amicably - but we'll see.

In the meantime I am assuming I should return to work since they have given me a decent role for the time being since it could take a month for them to handle my grievance. I also won't have to be in the office.

Its becoming a complicated situation with all sorts of twists and turns and it will be a question of finding out what sort of story unfolds I think.

[flowerybeanbag]

Yes absolutely return to work. They have handled the situation extremely poorly but it does sound like they are making some reasonable concessions (regardless of the motivation for doing so).

See what happens as your grievance goes through, and take a long term view as well. Regardless of the outcome, is this where you want to be? Might be worth starting to think about that if you haven't already. It is sounding as though perhaps they could make all the concessions in the world and you would still not be happy because of the way you were treated in the first place. It's probably time to start considering whether that's the case. Could you put it behind you, mend relationships and move positively forward if an appropriate compromise was found or not? That's not a question to answer btw, just something to consider!

[Varanasi]

I've written my grievance now - ready to send! TBH if it hadn't been for a terrible appeal meeting where I was ridiculed in front of the CEO I would not be going to these lengths. From the advice I have been given I can't really lose. I would have to resign if they send me to live in Newcastle ('live' is not an exaggeration - some long projects can last months). Its about pride not the end result.

It will be dreadful confronting work though - I know I am going to have to be very strong. They won't be happy bunnies.

[Moonlit]

Varanasi you might want to have a look at my original thread called on Constructive DIsmissal. Flowerybeanbag has been amazing, and has helped me a lot. So listen to her ok, she knows what she is talking about .

In summary my case;

1. I requested in parental leave, and was told to choose my job or my daughter and that if I couldn't arrange childcare it was my problem.
   
2. My manager started harassing me, to make a decision so I resigned. However, I did have a medical certificate for my notice period, so I didn't go into work.
   
3. I sent in a modified grievance letter as I had resigned, and the rules are different. They did not reply so I sent in a claim to the Employment Tribunal.
   
4. At this point I hired an Employment Solicitor.
   
5. ACAS contacted me, and my company were offering £3k.
   
6. At this point my solicitor took over.
   
7. Solicitor negotiated £6k (However, the solicitor is taking £1.5k so I am left with £4.5k)
   
8. I fired my solicitor, as it was getting to expensive. I have signed an agreement in which I get a reference and they will be held accountable if I ever hear them talking about my case to my future employers.
   
   This whole process has been very stressful, and I didn't even go to a tribunal hearing. So please think everything through very carefully. I made a lot of mistakes. I am here if you just want to talk .
   
   Good Luck! x