Is this discrimination?

[afrikat]

A close work colleague has been seconded to a more senior position for the last year. He has performed excellently and the head of department wanted to keep them at the level for the next year so a new role was created and they went through the technicalities of applying and they were about to be interviewed this week. They suffer from a chronic illness which is classified as a disability but they managed the symptoms and up to the last month they have never taken sick leave for it. He ended up being signed off for a month (after months and months of massive amounts of stress as they were covering several roles at once by this point). He just came back this week.

A new manager started 6 weeks ago (the role reports to this manager) and has suddenly decided that she does not want to fill this post after all. The official reason she's given is that she may restructure the team but she has also told another colleague that she is worried about the candidates ability to do the job because of their illness. She hasn't spoken to the candidate about his illness at all and I don't know if she knows that the head of department had commitment to keeping my colleague at this level.

It's all a bit of a mess and I want to support my colleague- he's been working his arse off and it seems so unfair. Can HR do anything given that the manager hasn't admitted officially that her concerns are down to health? Can a private conversation be used as proof in these situations?

"I don't know if she knows that the head of department had commitment to keeping my colleague at this level."

Is that actually documented anywhere? Is there genuinely a need for this position? If things have changed and it's not being recruited to at all, that's a bit different to the recruitment process continuing but someone else being appointed, and your colleague having reason to believe it is because of his disability.

Also, if he was performing excellently but working at this level involved "months and months of massive amounts of stress", is continuing to work at this level really what your colleague wants?

No I think the fact the head of department wanted to keep my colleague at this level was all verbally communicated unfortunately. Several of us were in attendance on one of the occasions he stated it though.

There is a definite need for the role, this area of the business has grown massively in the last year.

The stress mostly came from the fact that he was covering several roles at once. That wouldn't be the case with the new role and he definitely still wants it.

The excuse about the restructure doesn't hold up too well as recruitment is happening elsewhere in the team and new manager doesn't have an issue with that progressing

To be fair, recruitment may be happening elsewhere. This is not recruitment. It's a previous manager putting someone into a job created for them without any competition. In different circumstances, you might be screaming about that!

I don't think you have evidence of anything here, but even if you did, do you really want to force a manager to accept someone in a role that they don't want in that role? How stressful will that be for your colleague? That said, I think a new manager wanting time to consider their options is quite fair.

"There is a definite need for the role, this area of the business has grown massively in the last year."

You don't get to decide that, though. On the face of it, it's perfectly fine for a manager to hold back recruiting if they think they may restructure. She's only been there 6 weeks and it's perfectly normal and sensible to take some time to assess how things are working and consider options before deciding whether any changes are needed. If recruitment is happening elsewhere in her department it may be that that role/those roles are more urgent, whereas if this is a new role being created, it is probably less business-critical.

She shouldn't, however, be discussing your colleague's health with another colleague. I would suggest he asks for a meeting and says he's heard she has concerns about appointing him to the position created with him in mind because of his health, and he would like the opportunity to discuss that. It's not about whether a private conversation can be 'evidence', it's about practically and pragmatically, what's the best thing for him to do. And in reality, if she has concerns about his health, the best thing for him to do is address them.

The ugly reality is that management was fine allowing the colleague to work themselves into the ground, and also fine putting in place the recruitment to formalise the role. But how quickly has their attitude changed now that the employee's health has suffered, and their vulnerability has become apparent, the goalposts shift and management are having second thoughts. So the term "restructuring" is brought into the equation, to justify their rationale.

Sadly OP this happens a lot, management will cover their tracks when it suits them, rather than supporting the previously well performing employee back on their feet and into the role that is clearly within their skills and capabilities (because they proved it before, but they're probably suffering from burnout now).

It's another question as to whether there is tangible proof to take it to a Tribunal (which could be the reason you've mentioned discrimination?). The circumstances with the replacement employee would be complex, tenuous (and expensive!) to tie into a discrimination claim.

If the colleague is in a bad way, I'd say their health and well-being is worth far more than getting caught up trying to prove they were wrongly treated. It would be better if he can have a new conversation with his manager about his career roadmap going forward, to see what actual opportunities they see for him. Or if he has not faith in the employer, try to find a new job.

Daisychain I think you've summed it up really well and that's pretty much the situation. My colleague is going to speak to the new manager this week and will see where it goes next.
Thanks for the input all.

Why doesn't he speak to the Head of Department who made the promise and ask him/her to deal with the matter?