My employer has promoted my colleague to a senior position without offering me the opportunity and has said that this is because I am pregnant. What should I do as I feel this is unfair as they have also said the job would have been mine if I wasn’t pregnant.
I understand that your employer has promoted one of your colleagues to a senior position without offering you the opportunity to apply and stated that this was because you are pregnant. You stated that the job would have been awarded to you if you hadn’t been pregnant.
The situation you describe sounds like pregnancy/maternity discrimination. It is unlawful for an employer to discriminate by treating an employee unfavourably during the protected period (from the beginning of pregnancy to the end of maternity leave) because of her pregnancy or because of an illness she has suffered as a result of her pregnancy. You are clear in your email that the promotion would have been yours had you not been pregnant and that your employer has stated this. You could submit a claim in the employment tribunal for pregnancy/maternity discrimination and any such claim must be submitted within three months of the discriminatory act. If you succeed in a discrimination claim against your employer, you could be awarded damages, which would be based on the loss you have suffered and there is no upper limit on compensation. You are also likely to be awarded a sum for non-financial losses, i.e. for injured feelings, which is separate from an award of compensation for financial loss and can be awarded even where you have suffered no financial loss. Please also note that a discrimination claim must normally be submitted within three months of the discriminatory act.
Your employer’s actions could also form the basis for a constructive unfair dismissal claim. This is essentially when you haven’t been dismissed but when you resign in response to your employer’s fundamental breach of contract. Your employer’s actions in not awarding you a promotion and stating that this was because you are pregnant could certainly form the basis of a constructive unfair dismissal claim if you resign in response to such actions. However, I would always advise you to take further legal advice before resigning from your employment. Any claim for constructive unfair dismissal must be submitted to the employment tribunal within three months of your resignation.
In relation to both claims for pregnancy/maternity discrimination and constructive unfair dismissal, you are required to go through the acas early conciliation procedures before submitting your claim, otherwise your claim will not be accepted. In the first instance, I would also advise you to submit a written grievance to your employer, setting out your areas of concern and confirming that you consider that your employer’s treatment of you had been unlawful/discriminatory. If your grievance is unsuccessful, you should consider submitting claim(s) to the employment tribunal.
If you need any further assistance please contact Tracey Guest on 0161 975 3823.
Helen Frankland helped in the preparation of this answer.