Do I have a case for discrimination? ask the expert

I will be returning to work at the end of June after my Additional Maternity Leave. I have already had to submit a grievance in accordance with company procedure as my manager has refused my (I believe reasonable) request for flexible working. I now discover that in my absence a new post has been created and filled which sits between my role and my line manager, which means I will now have to report into this new post. Although this possibility was being discussed before I went on leave (and I voiced my objection at the time), nothing had been confirmed and I have not been consulted at any point. In fact I have still not been told officially. However, the matter has been discussed at length with the other team members who will be affected and they have been asked to provide their input in reaching this decision. I was led to believe that any changes which significantly affect one’s job should be notified to the staff member during maternity leave. In my opinion, this issue constitutes a restructure and in essence reduces the grade of my job by the fact that there is now another layer of management between me and my line manager. Do I have a discrimination case at all?

You are able to make a request for flexible working for the purposes of looking after your children provided you meet certain criteria (such as, you must be an employee and have worked for your employer continuously for 26 weeks at the date the request is made). I assume that you meet the necessary criteria. Your employer must then meet certain deadlines when dealing with your flexible working request and failure to do so means that you can claim compensation from them. It would therefore be worth checking that they met all the correct deadlines. Your employer may refuse your flexible working request if it considers that one or more of the following grounds apply:

  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demands;
  • Inability to reorganise work among existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods you are proposing to work; and/or
  • Planned structural changes

If your employer used one or more of the above grounds to refuse your request and your employer can evidence why these grounds apply then they are likely to be justified in refusing your request. However, if they did not properly explain the refusal or can not evidence the reasons for their refusal then you potentially have a claim for sex discrimination. I note that you have already submitted a grievance in relation to your flexible working request. If your grievance is not upheld, then remember that you have the right to appeal and should set out within your appeal letter why you do not agree with the reasons they gave for refusing your request. If at the end of the grievance process your request for flexible working has still been refused and you believe this was unreasonable then you may have a claim for sex discrimination. You may also be able to bring a claim for breach of the Flexible Working Regulations. You could also resign due to the discrimination and claim unfair dismissal on the basis that you have to treat yourself as dismissed due to your employer fundamentally breaching your employment contract. You should obtain further advice before taking this step.

In respect of the changes to your job while you have been on maternity leave, the first point to note is that when you return from Additional Maternity Leave, you have the right to return to the job in which you were employed prior to your maternity leave (which includes no loss of seniority). However, if reinstatement in your old job is not reasonably practicable then your employer is permitted to put you in a different position provided it is suitable and appropriate. Further, this alternative position would need to preserve your seniority i.e you should not be put in a lower position. You are therefore entitled to return to a job which is of the same status as your role was before you started maternity leave and if your employer fails to do this then you potentially have a claim for sex discrimination and unfair dismissal if you choose to resign as a result of the discrimination. You believe that by introducing another level of management the seniority of your role has been reduced. A proper assessment of your role and the affect this extra management has on your role would need to be undertaken to establish whether your seniority has in fact been affected. A change in seniority may affect your duties which would help to evidence an unlawful change in your job. It should also be noted that changes to terms and conditions can result in a redundancy situation. You should have been consulted with over the potential changes and you may be able to claim redundancy pay if you do not accept the lower position and are dismissed as a result. Also, the fact that while on maternity leave you were not consulted about the change in management whereas other staff were involved in the decision making process adds to any claim of sex discrimination you may have. In summary, the way you have been treated could allow you to claim compensation for breach of flexible working rights, sex discrimination, breach of contract, redundancy pay and unfair dismissal. You should take further legal advice on the issues to obtain more specific guidance on how to deal with your situation.




Comments [7]

  • Anonymous says:

    Please can u help me work out my holiday entitlement I work four days a week four hours a day. The companies holiday entitlement is 28 days holiday pro rata how many days holiday am I entitled to? I really need to know if a part time day qualifies as a whole day for holiday allowance ie 5.6 x 4 = 22.4 days? Thanks in advance

    Editor: Your holiday would be decided on a pro rata basis based on what percentage of full time hours you do eg if full time is 37 hours you would get 16 over 37 of full time holidays. You can work out your holiday entitlement in hours here - https://www.gov.uk/calculate-your-holiday-entitlement

  • Anonymous says:

    I have an employee that only works term time, she works mon to thurs 9am to 3pm and occasional saturdays. She gets paid monthly, a basic salary, car allowance and commission. The basic and car allowance are the same each month. She wants to take holiday during term time? I am not happy with this as she gets paid all year round and takes off-term off? Where do i stand on this? Also can i stop paying car allowance during time off as she is not using her car?

    Many thanks

    Editor: What does it say in her contract about holidays? If nothing, she can request holiday when she wants to as long as she doesn't request more than her allocated amount. Employers can turn down a particular request, but they must give due notice. Also they cannot stop their employees taking their due annual leave allocation – see https://www.gov.uk/holiday-entitlement-rights/booking-time-off-.

    With regard to car allowance, again what does it say in her contract?

  • Anonymous says:

    anybody please help ?? I would be so grateful..I work 32 hours a week over 39 weeks (term time) what is my holiday entitlement please? and if I dont get paid for bank holidays( even though the full timers do) am I entitled to more holidays ? thanks

    Editor: See https://www.gov.uk/calculate-your-holiday-entitlement

  • Anonymous says:

    Please can u help me work out my holiday entitlement I work four days a week four hours a day. The companies holiday entitlement is 20days holiday pro rata how many days holiday am I entitled to? Thanks in advance

    Editor: You are entitled to at least 28 days holiday if you work full time so you would get a pro rata equivalent of that. The 28 days may include bank holidays which do not have to be given as extra. You can work out your holiday here based on weekly or annual hours - https://www.gov.uk/calculate-your-holiday-entitlement

  • Anonymous says:

    1 work 7 days aweek mon to friday 2 hours per day the 2.5 hours sat and sunday total hours per week is 15 hours. what is my holiday allowence. and is it lawfull to work 7 days a week.

    Editor: You can work out your holiday entitlement here: https://www.gov.uk/calculate-your-holiday-entitlement/. On entitlement to breaks – see https://www.gov.uk/rest-breaks-work/overview

  • Anonymous says:

    as a part time worker i work 3 atotal 0f 12 hours
    days a week one being friday should i get paide time and half for working on good friday

    Editor: It depends what it says in your contract.

  • Anonymous says:

    I am about to start a 15 hour (2 days a week job). Does anyone know if I take a second job how will the tax affect me?

    Editor: Do you mean income tax? It depends on your earnings. For the current tax year the personal tax allowance [the amount you can earn before tax kicks in] is £9,440. For more on other taxes, go to http://www.turn2us.org.uk.


Post a comment

Your email address will not be published. Required fields are marked *