indirect discrimination against working mother

[SamSam786R]

Dear all,i am concerned that my employers are pushing me out of the business as working there has become impossible. as primary childcare provider for my children i require a certain amount of flexibility to work. the job i do is comms and can be done remotely. despite this i will go into the office three days a week. however, HR have told me that i must do certain days where childcare is impossible and so i am scrambling each week to find someone to watch my kids after school. they have said that this poilcy applies to all employees and NO exceptions can be made. my manager has told me that a job like mine is not suitable for working mothers and HR have stated that if i can not work around my children i need to go part time. in tandem i have now been put on an informal pip for a spelling error. since then, every mistake is emailed to me and my manager will message me on teams with all capital letters asking why i made these mistakes and that i can no longer make any mistakes at work. obviously, this along with the lack of flexibility or understanding has put me under immense stress - just today i cried in the toilet for one hour and had a minor panic attack. it might seem like a small thing, but these small aggressive remarks and confrontational emails have taken a huge toll on me. futhermore, my childless colleagues have been given leeway for working hours and days due to relocations. on top of that my HR person has stated that i am not attending the office for my full hours despite him coming in after me and leaving before every week. i am also one of the few people who come into an office regularly. they have also said i have baby brain on many occasions and compared me to my male colleagues. sorry for making this so long and rambly, there are so many other things that they have said and done to me, im so tired and would LOVE to resign but i need to pay my bills and the job market is awful right now. advice on: a: how to survive and b: how to escalate this with employment tribunal. thank you

Use of the term baby brain and reference to the job not being suitable for mothers is definitely discrimination

the fact you are struggling because you need flexibility due to your childcare commitments is not. Really you should ensure you have adequate child care in place 5 days per week rather than wing it and hope that they’ll allow you to nip out for childcare runs etc

No employer legally needs to offer flexible working to any employee, they need to review it yes, but if they can make a business case for business need, it is acceptable, I’d assume that’s easy to do.

it is not illegal to not let working mothers work from home. Please stop spamming saying this,

and people need to differentiate between the comments and the policy. The comments are discrimatory and she can go and raise a complaint about this, a grievance and have the company act. This does not mean the actions in terms of working location are discrimatory and legally employers need to let working mothers work from home.

The fact is that her posts are odd for someone who works in communications, where a clear writing style, with excellent punctuation and spelling, is pretty essential.

Now, she may well be a victim of sex discrimination-I have no idea-but what I do know is that she cannot do any of these things. If you know how to write clearly, then you know how to write clearly and , no matter how tired or stressed, it would be unusual to repeat constant mistakes such as a lower case 'i'.

The fact that her boss saw fit to correct her mistakes in capital letters does suggest to me that he is at the end of his tether with these mistakes.

PP are advising her to keep note of her written communications in case she does bring a case of sex discrimination but I would advise her to tread carefully with this.

I would advise this because if it transpires that they want to get rid of her because a Communications Officer who cannot communicate clearly, is failing at her job then she is providing them with evidence of this very fact.

I imagine a bundle of her communications handed to a Tribunal to support their case that they want to fire her because she is no good would end with the Tribunal agreeing that the case to fire her was correct.

So, I would advise her to think long and hard. They may simply want rid because she is no good and, if they have a file of her communications as proof, they won't have to argue too hard.

So, @popcornandpotatoes it is not bitchy or pedantic to point out that the OP's posts are relevant to the situation, as they show that her employer may have a valid reason for wanting her to go-in much the same way that a driving instructor who constantly crashed his car into a bollard, might also be invited to leave by his employer.

Can you show me where I, or indeed anyone else has 'spammed' saying it's illegal not to let working mothers WFH?

Nice attempt at a strawman there.

The advice was given to me based on my specific FWR and I agree we don’t know if OP put in an actual request (albeit I’ve not caught up on the subsequent 6 pages of updates). I wrote in my post before that my advice is to reach out to them and outline exactly what’s happened.

Ignore the rude unhelpful comments on here. Speak to ACAS they are very helpful and will give you support and guidance.

i have now been put on an informal pip for a spelling error. since then, every mistake is emailed to me and my manager will message me on teams with all capital letters asking why i made these mistakes and that i can no longer make any mistakes at work

op, gently it seems more than a spelling error singular, you are also saying you have multiple low performance reviews, so this has been going on some time.

are you in a marketing or communication role, maybe an admin one where yiu write customer or patient letters, where spelling and grammar is critical and your manager is having to check your work for spelling errors. Do you not have spell check on your computer?

it does feel like the pip is for more than a singular spelling error and it also feels like written communication is a key part of your role, where errors like this can’t be tolerated and they are numerous.

i would also advocate you think through if they do have a case for poor performance and maybe it’s not a single spelling error, because at any tribunal if they have evidence of repeated poor performance, ie previous performance reviews, then moving to pip and termination would be something a tribunal would support.

it feels like the performance concerns is now being mixed up with the working in the office issue and your lack of childcare. Are you sure there are no grounds for the repeated poor performance appraisals and none for the pip?

In terms of discrimination,You also need to look wider than your immediate team, are you sure the business employs no other mothers, you are the sole female or is that just your team? Is there no fathers in your team?

If there are other mothers or fathers in the wider business , are they expected to be in the office, or can they work from home? Is this a company policy or a policy of your team only. If it’s just your team you may have a case, if it is company policy and all staff are expected in and other people have children and are expected to have child care, then you will struggle.

you should contact acas, but be clear with them, as they can only answer to what they are told. It is doubtful if they are moving to termination due to poor performance you can stop that, but you can go to a tribunal after, seeking settlement, but you will need to prove you were a good performer, the company has been faking the appraisals, the issues didn’t exist, and if you go for discrimination, then that you were disadvantaged due to your gender as the sole working mother the company employs.

It sounds like they've said some inappropriate things and generally aren't a "family friendly employer". I think them insisting on specific days in when you've only fixed a pattern with your DH 6 months ago is unreasonable, and they should be accomodating the emergency situation with your after school club, what you suggested wasn't unreasonable with swapping days for that.

However:

• you need to have proper childcare covering full working hours. If you want to (for example) work 9-3 at home then make up the hours 7-9.30pm to pick up your kids from school, request it formally via a flex working request - business case it properly and explain why it can work for them as a business
• if your original contract (i assume pre covid) was 5 days in the office, they don't have to allow hybrid working. Again - formalise it with a proper flex working request.
• make sure you do your full hours when going to the office too. Don't compare yourself to others, you don't know what formal flex arrangement they might have agreed, just do your own role properly. Again if you want/need to be doing shorter hours because you need to pick up, either ask for reduced hours or put in a formal flex working request for how you make up hours.

The big red flags most corporate employers hate is people wfh with school kids who nip off at 3.15 and then have kids in the background, and people who never actually stay til 5.30 when they are in the office.

My god. Keep quiet will you. You are clueless regarding the law.

Incorrect. Employers are under a legal obligation to allow flexible working when captured under the Equality Act 2010.

You sound like one of those irritating people on a pub night out that drains everybody else with creative inaccurate drivel.

I disagree. I write official letters at work, they may end up being used in court cases, but the only reason my 'i' is capital on MN is because my phone does it automatically.

Not if they have a business case why they can’t support
they have an obligation to consider it but not to automatically grant it

They really don’t. At least google. They have a duty to consider it, but as long as they can provide a business case they do not need to permit it,

To those saying that you have to have childcare to cover your working hours - absolutely. But on days you’re in the office too, it has to cover your commuting time as well. My commute is 2 hrs door to door - so if I’m forced into the office on a WFH day it’s a nightmare as there is no childcare that can cover that window.

here is the Acas guidance on it.

https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests/html

they must consider but can refuse, and ghe reasons they can refuse are listed, including an impact on performance or quality of work, and this is an employee who has, rightly or wrongly, poor performance appraisals and is on a pip.

Are you sure about this? If so, and the indirect sex discrimination argument is as strong as suggested on this thread then why do flexible working requests ever fail?

So why are any flexible working requests declined then? There’s loads of threads on here from women who have them refused. If it is as you say, then all those requests must be granted under EA 2010?

Yes, that is a fair point.

However, it does not wash when speaking about the OP's posts.

The reason for this is simple.

I used the example of small "i" usage but I could also have used examples of: unwieldy sentences; poor spelling; inadequate paragraphing and sloppy punctuation.

We all make mistakes but these mistakes are a marked feature of her posts, which is why I offered my advice: advice which she would be advised to take note of if her job is really that of Communications Officer.

To summarise, it is perfectly possible that they no longer require her services because she is a Communications Officer who cannot write clearly. If she keeps a dossier of her communications, as she has been advised to do by other PP, she could very well be shooting herself in the foot.

If she takes her employer to a tribunal, it is perfectly possible that the tribunal will agree with her employer that she is not fit for purpose.

It may be that she is being discriminated against-none of us know-but what we all do know is that it will be perfectly possible for her employer to argue that she has been sacked on the grounds of competency and the OP's own work will be used as evidence.

That is why I advise her to tread very carefully indeed.

You are thinking of flexible working requests. That differs from the Acts in the Equality Act 2010.

Courts take a dim view of Employer failures to implement the Equality Act.

It is a weak defence to state that it is company policy to mandate office attendance, whereby that would be at a detriment to keeping a working mother in work. That is one of the ultimate objective i.e. to preserve the role for the employee and keep them from drawing down on the benefits system.

Sex is a protected characteristic under the Equality Act 2010, and a court wants to see solid evidence as to why the job must be conducted from the office, and not from home, to allow the employee to maintain her job. A "that is our policy" defence will not work in court. In employment law. the burden of proof is on the employer to prove they didn't discriminate. It is not on the employee to prove the employer did discriminate.

I am not sure where you get your employment law information from.

I am astounded by your 'make it up as I go along' rubbish.

You are incorrect. Spelling/grammar mistakes is not grounds for dismissal, and in this context, will be seen as a smoke and mirrorr attempt at concealing discrimination by the Courts.

In a comms role? Spelling and grammar mistakes won’t be seen as grounds for dismissal? Really?

My written work in my job do not have any relation to my MN posts..I check things very carefully at work

I hope OP does too, given her role

I guess the difference is I don't view those things as 'mistakes' in an online post. There is no requirement to have perfect punctuation and paragraphing on platforms like MN. When typing on my phone I rarely go back to correct as it is a faff. You may think your post is well though out and written, I think god who has the time to worry about that when posting on an anonymous forum.

You may be right and, in jobs where one is not employed to write clearly, you are most definitely right.

However, in this case where the OP is employed to write clearly and correctly, I fear you are wrong.

Would a salon owner be obliged to employ a hairdresser whose balayage looked more like silage? Would an accounting firm be obliged to employ an accountant who couldn't add up? Would a driving school be obliged to employ an instructor who didn't know the Highway Code?

Would a firm be obliged to employ a Communications Officer who couldn't write?

I think a reasonable person would answer, 'No'.

However, that is only my opinion and it may be that it doesn't matter to OP's employer and that instead, they are trying to make life uncomfortable for her because she is a mother.

Nonetheless, I think my point is at least worthy of consideration before being dismissed with an air of Gung Ho!

Anyway, I am off to my job now so all the best!

You are correct. Many are denied, and unreasonably at that. The issue is, most employees don't exercise their rights and accept the employer's answer as a god-like explanation.

And yes, where somebody has a protected characteristic, they do have to be granted, so long as it is reasonable, but the bar is high.

Example: A blind person gets refused a job as a school bus driver and takes the would-be employer to court for discrimination. His/her claim would not be well-founded as it is impossible for a blind person to navigate the roads, and it would be considered an unreasonable adjustment. The employer's defence would be rich in merit.

Example: An employee who suffers from an onset of epilepsy asks the employer to work from home to manage their symptoms. The role can be conducted from home but the disgruntled employer doesn't accommodate the request. This then falls under the Equality Act under 'failure to make reasonable adjustments'.

Example: A working mother is suddenly told she is needed more times per week in the office. Even though the role can be conducted at home and managed well in flexing her time. When she expresses her concerns at how this wouldn't work because of childcare arrangements, the employer responds with a "your grammar is off", "you have baby brain", "this role isn't suited for a working mother", she immediately has the safety of The Equality Act, spanning across various different Acts. In which, not only would her case succeed in Court, but the employer would face a hefty penalty to pay.