Urgent Help Needed!! Constructive dismissal or 'just' sexual discrimination

[missielizzie]

Hi. I hope someone can offer me some advice. As per usual with me, this is rather last minute as my 3 months for filing for tribunal is up on Monday!! However, it is not all my fault... one of my issues is non-payment of outstanding annual leave, and as I left at the end of Jan, I waited until the next pay run end of Feb. When no money arrived, I chased and finally had to raise a grievance and wait 28 days for a response (they didn't respond!!). That brings us up to now.

The issue around my outstanding pay is one I am quite confident on. However, there are other matters which arose whilst on ML that resulted in me deciding not to return to my job. These were also raised in the grievance, and are;

My job was advertised in the local paper whilst i was on OML. It was not advertised as temporary or maternity cover, and I even asked a friend to 'apply' and the pack she recieved implied it was a perm job. This caused me a great deal of stress and anxiety, and meant I had to answer lots of questions from friends etc who had seen the advert. I didnt raise this with work at the time as I was recovering from a C-Section and frankly had other things to worry about!!

My employers never confirmed to me what date I was due to return.

I got a letter from HR telling me I was due back on 1 November 08 (I only started ML on 31 Jan 08), and asking me to confirm if I wasn't going back by 31 Aug 08. I wrote to tell them that they should assume i was taking 52 weeks, and they had no right to ask me to decide earlier. I told them I felt harrassed by this- incidentally this HR manager subsequently left and I got a grovelling apology from his replacement!

Finally, after giving my notice, it took 2 months to get my outstanding leave pay, and they have calculated this wrong. I believe they have based it on what my 5 year old contract gives as 20 days per year, whereas the law has now changed to allow me 24 days per year!

Phew. My question really is, as I am filing a tribunal application, do I have grounds for constructive dismissal, or do I just claim that they failed to follow procedures therefore I claim sexual discrimination.

I feel that my treatment meant I was unable to continue working for them, but I know this is going to be hard to prove.

Any advice gratefully recieved.

[flowerybeanbag]

With the holiday pay issue, if you have raised a grievance and they have not responded/refused to pay you the extra couple of days, then yes you would have a claim for sex discrimination. Did you actually speak to the HR Manager about that one? it's just that's a very easy piece of legislation to check and it seems strange that they wouldn't check it and would just ignore a grievance. I'd probably ring the HR Manager tomorrow and say you've got a claim form ready and done and are going to put it in, but obviously if they pay those couple of days you will withdraw it.

With the recruitment campaign during your maternity leave, I really think you might have to leave that one. They advertised a job similar to yours, which may have been yours, and didn't happen to put 'temp' or 'maternity cover' in the ad. But that doesn't necessarily mean they were replacing you on a permanent basis. They may have intended this person to be temporary but forgot to put it in the details. They may have intended to move this person to a different job when you came back. They may have thought they might need two of you further down the line. There are any number of possible explanations for this and you didn't give them any opportunity to explain it to you at the time. I really don't think a job advert is enough for constructive dismissal and it isn't sex discrimination so I think you need to drop that. It's far too long ago now anyway -if you were recovering from a c-section and started your mat leave in Jan last year I assume it was Feb or March 2008? Far too long ago to claim it forced you to resign, and you would have been expected to give them an opportunity to explain it first anyway, which you didn't.

With the return dates, yes they made some errors and didn't follow the correct procedure, but once you pointed this out, the errors were corrected and you received a grovelling apology. I can't see any issue there that you can legitimately take legal action about either tbh. It was all resolved.

So unless there is more, it sounds as though the only issue is that your leave pay was calculated wrongly, by a couple of days. That's a perfectly legitimate claim obviously, but by the sounds of it that's all you've got that you can bring a claim about at this stage.

[missielizzie]

Hi, thanks for the advice. I take your points.

The job that was advertised, was definately 'mine'. I was manager of a shop and there is only one shop in the town. The advert was placed both in the local paper and in a poster in the window. The role was filled on a temp basis before I started mat leave, and we had a handover period. However, this person left a month or so after I did, and this is when the job was advertised again. It seems strange that it was advertised as temp while I was still at the shop, but not while I was off.

As far as the outstanding pay is concerned, I have contacted them twice to clarify how I believe it should be calculated, but in the first reply they simply reiterated how much was outstanding. I believe this figure is wrong and they didnt explain their calculation as I'd asked.

With regards to my grievance, I wrote to them on 26 March giving 28 days to reply. I got a letter on 03 April telling me that the person who would deal with it was on leave until 20 March, but would respond then, in the meantime she would keep me updated on my grievance. I have heard nothing further and the 28 days is now well past. My view is that the person charged with dealing with it was not the only one in the organisation who could handle it, and they didnt have to chose someone who was on leave all that time. I think they are just stalling.

I know I sound like I'm being petty. I don't feel my other issues were resolved either - yes they apologised, but they still didn't notify me of my return to work date.

If I pursue my claim for the unpaid money, do I file this as sexual discrimination, or just unpaid wages? Also, can I raise the other issues in a tribunal claim as unfair treatment/sex discrimination, rather than constructive dismissal?

[flowerybeanbag]

It may be strange about the job, but it's far too late to raise it as an issue now unfortunately. You gave them no opportunity to explain at the time and it was a year ago.

Similarly with not providing you with a return date. Yes technically they are supposed to give you the actual date, but you had an apology for the incorrect date being given and for asking you when you would return, so I think the small issue that they never gave you the correct date is technically not right, but again, this was too long ago to raise as an issue now.

With the unpaid wages, you could do it as both unpaid wages and sex discrimination I guess. I'm not a lawyer though.