Advice concerning unfair dismissal.(19 Posts)
I would really appreciate some advice for my situation, if you have suffered something similar I would love to hear as feel very alone right now.
I've been temping through an agency in the same sales position for over a year now. I've always been a high performer & have had no performance issues prior to my pregnancy.
I am now 14 weeks pregnant & my employers have been aware for over 2 months due to my suffering with HG.
I am only entitled to SSP which doesn't cover my outgoings so tried my hardest to still come to work but was unable to perform due to being extremely weak & sick.
The company (let's add this -it's a national newspaper) suddenly put me onto a target review for 2 months low performance.
I had a feeling they would do this so prior, researched my rights & explained them to them. They didn't want to hear it & have now 'terminated my position' a day before my review is up.
I have a doctors note to say I have HG & work related stress & now my agency are offering to find me more work. But I feel this is a cop out as they should've never allowed this treatment of me in the first place.
Luckily I joined unite & have a very knowledgable union representative available to help me. Ultimately this will go to a tribunal & the union seem confident I have a strong case.
However this doesn't deal with the loss of trust I've had in a job that always treated me good until they no longer needed me. I'm stressed I've been put in this situation. I want to enjoy my pregnancy & I'm hurt that it's being a struggle to do so as now me & my partner will struggle a lot more financially.
Any tips, advice or just an understanding of how I feel would be greatly appreciated.
The agency are your employer not the newspaper.
Get another job quickly, this will drag on a while and you might get something but that doesn't help you in the meantime financially.
You don't have any unfair dismissal rights i would concentrate in finding other work. Might be worth talking to Acas too but you may find this hard to Pursue this in any way as you'll have to prove pregnancy discrimination
Thank you for the responses.
It's the agency we are going through as they failed their duty of care, the company will be added as a third party.
I will be looking for new work but am unfortunately still poorly with HG so makes it very difficult.
I can prove pregnancy discrimination thanks to doctors & hospital visits & the Equality Act. As a pregnant woman I'm a protected character & have a great union representative.
Sorry to hear about the HG - I had a colleague who suffered and it was grim!
Presumably the work review came about because your performance was below expected levels - is this a policy of the paper, is it a set trigger point that would be used whether someone was sick or not? When did you get the doctor's note, because from what you've said you just went into work rather than stay off sick. This could be the issue really, because if you were absent from work sick I would imagine that allowances would be made (to a degree) in the performance review/expected performance levels.
What makes the Union rep think you have a strong case, is it because it is a pregnancy-related illness that is (hopefully!) time-limited?
I appreciate that you are stressed about money but if you are too sick to work then there is not a lot you can do about that aspect. It's part of the nature of temp work that you only get the SSP - I used to temp myself and have some sympathy here.
I worked in newspapers when pg with dd1 and they were crap but Northcliffe and Trinity Mirror certainly had a policy that first absence was recorded, second was manager review meeting and third was conducted by a senior member of staff and a review period would be set. I believe the MD used to create pie charts to show patterns etc. As a temp I imagine you have less rights but I'm not an expert.
As a temp the company has engaged the services of the agency to provide cover for an interim period. If you are ill, regardless of the reasons the company can can ask the agency to provide another temp - that is wholly reasonable. I don't think your union is that great if they are encouraging you to pursue this when you are ill.
I'm not an employment lawyer or HR professional, but a manager, and I think you do have rights - if it's discrimination (which it is if pregnancy-based), then it vis unfair dismissal. It sounds like that is why Unite say you have a strong case.
Good luck, it's shitty behaviour by your employer.
tried my hardest to still come to work but was unable to perform due to being extremely weak & sick
This may be why you're having trouble, if you tried to come in say 5 times and went home sick, it'll be counted as 5 different absences. Whereas if you went off sick once then it would only be 1 absence regardless of how long the absence.
I'm a bit suspicious about the union saying you have a strong case. From what you have said, it doesn't appear so.
You can't be discriminated against because you are pregnant. Pregnancy related illness can't be used to dismiss you -FROM THE AGENCY - who are your employer. However, it looks like you have been removed from that assignment because of performance - as a PP said, you might have been better taking the time off. Pregnancy does not mean an employee is bullet proof from performance management. The company pay the agency to handle these kinds of issues. They need the job done then they will ask the agency to replace you.
If the agency are trying to find you more work then they haven't dismissed you; however if it's a standard agency contract for services then you are only paid when on assignment.
I'm not convinced you can prove pregnancy discrimination. You can prove pregnancy, but that doesn't mean that any action is a result of discrimination.
It's sex discrimination. You are entitled to SSP, the agency should be helping you find alternative work if you are medically well enough and you will be entitled to stat mat. The agency is your employer and the agency should have ensured reasonable adjustments due to the pregnancy related illness. I think the union I providing sound advice.
She isn't well enough to go on another assignment though, she's not well enough to work, the agency haven't dismissed her there's no case.
This is a tricky one, I think. The OP is employed by the agency but her rights regarding discrimination extend to her employment by the agency and her engagement by the newspaper. As she has worked for the newspaper for over 12 weeks, she has limited rights as an employee of the newspaper directly under the agency workers regulations (2012). In any case, both the agency and the newspaper could individually be guilty of sex discrimination at any point (or one, or the other).
The newspaper have taken issue with the quality of the OP's work. Her case is that her work is only suffering due to hyperemesis gravidarum, which is a temporary condition exclusive to pregnancy. Pregnancy is a natural state of the female body. If the OP was not female she could not become pregnant, therfore no man will ever be in the position of having a temporary reduction in performance due to a condition brought about by a natural state of being. To dismiss a woman for poor performance during certified HG is to dismiss her for being pregnant (because you cannot get HG without being pregnant). It therefore discriminates against her for being a woman because no man is ever going to be dismissed for having HG.
The fact that she is employed through an agency is irrelevant because she had rights against discrimination from day 1. She also has rights to SMP from week 12 of the assignment.
The agency will argue they haven't dismissed her and she is welcome back any time she feels well enough to return to work.
If the OPs performance dropped temporarily because of of pregnancy-related sickness absence and the end user of her services terminated the arrangement because of that, then I'd say there is some legal vulnerability there. Just because the agency are offering alternative work doesn't mean there was no discrimination. It might mean it's not worth the hassle and expense of pursuing a discrimination claim, but it doesn't mean there is no case to answer.
The agency will argue they haven't dismissed her and she is welcome back any time she feels well enough to return to work."
Yes, but she has lost her long-standing (1 year +) assignment with the newspaper because of her HG, which is a direct result of pregnancy, which is unique to being a woman. She is likely to be able to demonstrate that the paper were happy with her work for over a year prior, that she provided evidence that the condition was temporary and a direct result of pregnancy, and that her performance has been affected as a direct result of the condition. Employing her through an agency does not allow the newspaper to ignore their legal obligation to avoid discrimination.
I am a union rep. The law states that dismissing a woman for any reason connected with her pregnancy is always unfair, regardless of whether there is any other reason for the dismissal. So as OP had performance issues relating to her pregnancy, it is automatically unfair and she will have a strong case. This also extends to temporary employees. It sounds as though your rep is a good egg - good luck in your case.
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