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

You’ve been very rude on this thread and said some legally inaccurate things. No, can’t just ‘present their case’. They have to prove facts from which an ET can infer that discrimination has occurred. Then it switches to the employer to prove that it wasn’t discrimination.

Which is precisely what I said.

The claimant presents a prima facie case. There is no burden on them to prove discrimination at an ET. The burden switches to the respondent to prove they didn't discriminate and utilise defences available to them. So thank you for agreeing with me.

In this particular case, saying to an employee that they have "baby brain", or "This role isn't suitable for working mothers", there is zero defence available to the respondent as the comments have no legal defence justification.

The Act doesn't support employers.

The employer does not mount a claim against the employee. The Act is in place for the employee to avail of to claim against the employer. The Act simply has legal defences available to it, in which the burden is squarely on the employer to disprove, and not for the employee to prove after they present their prima facie case.

The EA is not inplemented to protect employers.

The same applies to Hunan Rights. It is implemented in EU countries (albeit currently retained by the UK) to protect citizens from their own government, to prevent countries from inhumane regimes.

They have to present facts, not prove them.

In this particular scenario, the comments alone would be a 100% failure of a defence for the respondent, as there is no legal defence available for them to avail of.

I’m really surprised by your view that the comments alone are sufficient to prove discrimination. I would have expected there to need to be some form of action. And in this case it appears that the employee is not being allowed to wfh for childcare reasons and has been put on a PIP for performance reasons. Both of those actions seem justifiable so I am surprised that they are undermined by a baby brain comment.

Making the Baby brain comment and others is legally discriminatory alone, and any PIP imposed on the employee would be viewed as a smokescreen for their defence (one in which would not succeed)

The comments alone are 100% discriminatory which would be the smoking gun for the claimant. There is no legal defence to it. None whatsoever. And any PIP on the employee would be considered as part of that discrimination.

In addition, the role can be conducted at home. So it is indirect and direct sex discrimination to refuse the request under the EA.

She isn't a pilot, whereby she has to be on site/in an aircraft to conduct the role.

Nor is she asking them to move the office three inches to the left.

Her requests are legally reasonable.

I think this is where we differ in that I would have expected requiring an underperforming employee to attend the office to work under supervision would have been a reasonable request. But I’m not a lawyer.

Employers who discriminate by its very nature turn their illegal behaviour back on the employee by marking down their performance. It is a smokescreen to their attempted defence.

It doesn't work in court.

I admire your confidence and certainty

Thanks. So will the tribunal judge.

Pedantic. I didn’t say or even suggest any of this. I was simply pointing out, in response to another poster that it is not illegal for an employer to let an employee go if they can demonstrate that no reasonable adjustment can be made.You know exactly what l meant.

Actually I don't.

It is illegal unless they have a more than convincing reason.

In this scenario, spelling/grammar is not a reason, when used as a smokescreen for discriminatory remarks towards an employee.

Pedantic yes. Employment law by its very nature, is actually specific and pedantic.

Doesn’t change the fact that if an employer can demonstrate that they have done their best to provide reasonable adjustment and it hasn’t worked, they are not in breach of the law by letting the employee go. And that was the only point I was making. The key word is reasonable.

OP have you had any luck sorting childcare?

OP, I work for a union. Some of the advice you have received on here is genuinely terrible - really inaccurate stuff. And often confidently stated by people who don't have a clue what they're on about.

There's a lot to unpick in your situation and I can see several issues and the makings of a case against your employer.

Best of luck with it. You deserve better.

This. Not sure why employers would miss out on talented people just because they don’t live near the office.

Hi all - thank you for those who have given helpful advice and tips. i can confidently say i am good at my job and have exceeded my kpis by 30%+. sadly this was ignored during the last performance review on the basis that: my ideas are not creative enough and my public speaking is not up to par, both of which are unmeasurable, so as u can see they being a bit unfair and have made it impossible for me to excel at this job. that paired with HR's rigid office rules (during Xmas they threatened to take unaccounted WFH days as annual leave) has made me believe that they are in fact trying to push me out. Bear in mind i am the only young parent in the wider team. also worth noting, the spelling error was made only after i had sent the document to two senior colleagues for sign off. they were rushed and asked me to send it asap and so i stupidly didnt read it again to double check - mistakes happen when u are rushed/stressed, my immeadiate manager accepted this but her senior was less forgiving. PS - spelling trolls pls find a puzzle or crossword to do - i don't need your advice. some of us don't have ample free time to trawl a forum for spelling/grammar checks lol

What do you mean you’re the only young parent in the wider team are you honestly saying not one person who has kids at school works for this company?

Child care is not a protected characteristic.
They have a business to run not run their business around you.

Op

you need to be clear on what you’re saying. Everything is a little jumbled.

you say on pip due to one spelling error. Yet earlier you say you’re picked up in every error, indicating it is multiple.

you then go on to tell us there are other issues, public speaking, creative ideas , insubordination etc,and a history of poor appraisals before the pip was put in place.

so clearly you have been told exactly what this pip is for, but are not being clear here, which is fair enough, you can postion it any way you chose. But it will mean any advice is erroneous

you then conflate it with the issue of wanting to work from home, due to lack of child care.

you postion this as the only parent in your team. You then move to the only young parent in the wider team,

it feels unbelievable you are the only parent who has children who are in need to childcare, be they preschool or at school in this whole company, it’s clearly a company wide rule, many companies are doing this now,

it also feels unbelievable you’ve been put on a pip for one spelling error, and from what you’ve said, that’s clearly far from the case.

they likely are moving to termination, yes. Or pushing you out using your words. But trying to build a case it’s because you’re a parent with child care responsibilities and an excellent employee who excels at all their kpis maybe difficult for you.

if they push you out, you can’t prevent this. All you can do is go to tribunal, and if you do, you can’t present what you’ve presented here, in this muddled up way, it has to be factual, from your performance to are you really the only parent.

I don’t think any employer is legally obliged to make adjustments to accommodate employees’ last minute childcare problems. Many may choose to do so if the employee is well regarded, but your employer’s actions suggest that you are not well regarded. I’d start looking for another job pronto, as the writing’s on the wall here. If they are acting unlawfully then of course you could go to the Employment Tribunal but claims there take over 2 years to reach a hearing and you are required to seek alternative employment in that time (if you’ve already left the employer you’re claiming against), and if you find other employment then your claim for loss of earnings is reduced by the amount of your new earnings. So if you end up earning the same or more, a claim for loss of earnings is reduced to nil.

In the meantime, the spell check function in Word is handy, or you can drop drafts into ChatGPT for a spell check and general improvement.

I think the argument that because the role can be done at home, requiring an employee to do it in the office is direct and indirect sex discrimination is wrong in principle and in law. Many jobs CAN be done at home but employers require a certain level of office attendance for reasons such as supervision, culture, collaboration. I’m a lawyer and I could work entirely from home but my firm requires office attendance at least 2 days a week. That applies to everyone, regardless of their status as a parent. It may be more difficult for some mothers (including myself) who have to pick up kids from school, but it’s not discriminatory because it applies to everyone (and women aren’t the only people who have to pick up children from school).

I think they know that you do not have childcare on the days you work from home and so are making you go into the office instead. Get childcare for the whole working week? Or go part time. A choice most parents need to make.