Is this discrimination?

[Daisychain185]

I am one of four senior leaders where I work, in the company structure we are all equal and directly beneath the boss who owns the company, and everyone else is less senior than us.

The boss wants to sell the company over the next 10 years through an employee share scheme, which he is offering to the four of us, where we would each get given 2-3% of the company a year. This is in exchange for us committing to working full time plus overtime which has been suggested will come to 50-60 hours a week.

However, I currently work 4 days a week (I have a toddler) and will be going on maternity leave for my second baby at the end of the year. He has said that unless I commit to the 50-60 hour weeks on my return, the scheme won't be open to me. This isn't something I want to commit to when I return from mat leave with 2 small children.

He is not open to me being given a proportionate percentage of shares to my colleagues based on the number of hours I can commit to, it's all or nothing.

Is this discrimination? Or is he within his rights to include or exclude whoever he wants based on whatever he wants?

I am a loyal and committed employee with high career ambitions, but I feel if this opportunity isn't open to me whilst working my current hours my future at the company is probably over.

Hang on. Do you actually want to co-own this business, with these other three people? That's the first question to ask yourself.

It's irrelevant. She should be given the option the same as if she wasn't a woman of child bearing age.

It's irrelevant.
No, it's not. The boss is trying to push it as the best ever opportunity. Of course he would. But I'm wondering if it is really what OP wants.
Does someone with ambitions want to handcuff herself for the next 10 years? Does she really want a lesser percentage than the other three, making her always the minority.

I think how he treats employees is one thing but who he wants to give shares to in the business is more tricky.
Tbh, I wouldn't want to do it if I were you and I also wouldn't want to do say 30 hours/ week and have others unhappy with that. I don't see the issue with you doing a proportion, but clearly he does. Probably not something I'd raise as discrimination as I'm not sure what it'd achieve.
Presumably he has a reason??

It's a good question, and to be honest the answer is probably not, especially as like you say I'll be on the back foot from the start. But to me that isn't the point. I'm mainly curious as to whether this would be classed as discrimination.

Certain share schemes have minimum hours you have to work to be eligible. If it is EMI shares for example I think it's 25 hours

I currently work 30 hrs a week

I think it is discrimination because he's not allowing you the same deal as the others based on your personal circumstances, which are being on maternity, being a part time worker and being a parent to young children meaning you can't commit to overtime.

Sounds like shite to be honest. 10 years of 60 hour weeks to potentially co own a business with a group of people who may or may not go the distance? Seems like a scheme to have everyone working harder on a promise of jam tomorrow. Just leave and set up in competition. Doesn't take 10 years and you get 100% of the shares unless someone comes with you

It would definitely be discrimination if it was not open to you due to going on maternity leave. But as the conditions apply after you get back from mat leave, I don't think it is. I'm not an expert though.

@Daisychain185 Are your other three colleagues all male, by any chance?

I don't think this is discrimination given they are still offering it to you as an option post maternity.

Ultimately, whilst it would be nice for them to offer, Maternity is a protected characteristic whereas working part time is a lifestyle choice. And if it was worth it enough to you as a family you could reconsider your hours.

I think it would be - sounds like you’re being denied on the basis of maternity and sex. Don’t some maternity protections continue for a time after returning too?but the deal is being done now.

It isn’t discrimination, because you’re being given the same opportunity as the others, under the exact same terms. It is you who is rejecting it, and trying to get the same offer, under different terms to the others, he is within his rights to refuse that.

I don't think this is discrimination given they are still offering it to you as an option post maternity.
The Gov.uk website talks about direct discrimination as treating people "less favourably than others" and it's OP who is arguing for the 'lesser' here! However, indirect discrimination is the "putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage". So she might get them on that, on the all-or-nothing clause.
But I'm not sure who the OP is contracting with here: Big Boss (the shareholder, who is presumably OK to dictate the terms of his share transfers) or the company (the employer, not OK to indirectly discriminate re hours)?

The offer is a mess. It mixes up shareholders and employees. It is over too long a time period. It seems to prioritise presenteeism rather than results. And I dread to think of the tax complications.

Yes it absolutely is discrimination.

In your position I would consult a solicitor. It's not run of the mill ACAS stuff.

So it is not direct discrimination as you're being offered the same as the others.

It could be indirect discrimination as what he's offering is likely to exclude pregnant women/mothers. However, it's not like he is advertising a job generally which might disadvantage women + OP hasn't said what his reasoning is (if she even knows), so it's impossible to advise x

They are

I understand his reasoning is that if I don't commit to the 50-60 hr weeks, it shows a lack of commitment from me and therefore he wouldn't want to give this "opportunity"

You are being offered the same. If you got your way, it would de discriminating against the others making them work 50-60 hours because they haven't got a child

I'd suggest that this doesn't fall under any legal definition of discrimination. He is not discriminating against you as an employee. Further, he is actually offering you the same deal as the others.

This isn't something I want to commit to when I return from mat leave with 2 small children

I think this is key. Not direct discrimination. Could be indirect, based on sex, if it applied to the period of time you were pregnant or on maternity leave. But, you state that it is something that you do not want to commit to rather than something you are inherently unable to commit to, based on your sex.

Obviously we're all just randoms on the internet though, so you definitely need proper legal advice.

There's no law that says the woman has to be the one to go part time because of children

I actually think the discrimination is around you being treated differently as a part time employee - rather than around maternity of being a woman.

It's still discrimination though.

I don’t think it is discrimination because you could choose to work full time - many mothers do - but you’re choosing not.

You've been offered the same as everyone else. They may choose to say no because they need to care for an elderly relative or they simply don’t want to give up their leisure time - again a choice.