Should employees be given more rights on when and where they work in light of the Covid...read more
Following the birth of my second child and a year’s maternity leave I went back to work on a part-time basis, but to a different role, different location and reporting to a different manager, all of which I did agree to because the only option I was left with was either work full time or take redundancy. I was not financially disadvantaged by this. Now nearly 4 years later I find myself struggling to be promoted in any way within the company. I continue to work part time (3 days a week) and am not willing to do the role I am currently in on a full-time basis. Whilst I am in no worse financial position I do feel that the work is of a less senior level. In the last few weeks there was an announcement saying that three people (full-time male employees) have been promoted to new roles which were not advertised. The Company has a complex structure and as such it is difficult to confirm whether the promoted employees are on the same level as me, however I think they are. I am very frustrated because it seems to be impossible for me to be promoted. If the (full time) roles had of been advertised then I could have chosen whether or not to apply, but because they weren’t I had no opportunity to even be considered. Additionally the company NEVER advertises part-time roles in the department in which I work, let alone at my (manager) level. At the end of last year I did express an interest in career development and stated that I would not want to be missing out on opportunities because they assumed I wanted to continue working part time, but I stressed it would depend on the role. One of the three roles is located in the original office I worked in prior to my maternity leave and therefore the possibility of me working more hours is much more feasible. I’ve tried to discuss this with my manager, but was told that perhaps if I would commit to returning full time there may be more options available. Recently my manager has reinstated the team meetings which she has arranged for a day I do not work. I am the only employee in the team not in the office five days a week. It is difficult for me to be perceived as a manager by the rest of the team when they have these meetings without me. Again I have mentioned this to my manager, but was told my attendance was unimportant. Please can you confirm what the legal situation is, but also what I should do. I’m getting to the point where I feel I will have to leave in order to carry on with career development.
From the information you have provided it seems that you may have a case in respect of less favourable treatment on the grounds of your part-time status and also indirect sex discrimination.
The law provides that a part-time worker has the right not to be treated less favourably than an employer would treat a comparable full-time worker. It appears that you have suffered from less favourable treatment in comparison to your full time colleagues by being excluded from team meetings due to them being held on days which you do not work.
An employer may justify unfavourable treatment if they can show that the treatment is due to objective grounds and not because of your part-time status. For example, an objective ground could be if it is not practical to hold the meetings on a different day. However, your employer’s explanation that your attendance at team meetings is unimportant would be unlikely to be found to be a justifiable objective ground.
Also, if it is the case that your manager’s comment that your attendance is unimportant is because of your part-time status, this may also give rise to another incident of unfavourable treatment.
In relation to promotion, again you have the right not to be treated less favourably because of your part-time status. If it is the case that the three males who were awarded the three new positions are comparable to you (i.e. they are employed at the same level as you) then it appears that there would be good grounds to suggest that your employer’s failure to consider and offer any of the three positions to you is less favourable treatment because of your part-time status. This is so particularly given that you have expressed an interest in career development and that you would not want to miss out on other opportunities. This is subject to your employer’s explanation as to why you were not considered for the roles and whether their reason(s) would constitute objective justification for their actions.
I certainly believe that the comment made to the effect that your promotion prospects would be improved if you considered working full time is a prima facie discriminatory comment on the grounds of your part-time status.
It may be worthwhile checking whether your employer has an Equal Opportunities Policy in place and if so, consider what it says in respect of recruitment and promotion. If you could show that you suffered such treatment because of your part-time status, it could also be argued that your exclusion from team meetings and the fact that you were not considered for the three positions which have recently been announced amounts to indirect discrimination because of your sex, given that women are more likely to work part-time due to having children. It is noteworthy that all three positions were offered to male employees.
In respect of advertising the positions, there is no specific duty for an employer to advertise a position. However, it is best practice to do so as failure could be discriminatory. It could also be argued that your employer’s failure to advertise the three positions led to discrimination. Although the positions were not advertised globally, whether to males or females, the failure to advertise the roles could be said to have caused the continued exclusion of part-time workers and therefore could be discriminatory towards women on the basis of the analogy above. Some further investigation would be required in respect of this and your employer’s reasons for deciding not to advertise the roles would need to be considered.
When a part-time employee feels that they have been treated less favourably than a full-time employee, they can ask their employer for a written statement of the reasons for that treatment.
The employer must then provide that statement within 21 days of the request. The part-time employee could then use that statement or the failure to provide a statement in any Tribunal claim they later bring. Another option may be to raise a formal grievance in respect of the incidents whereby you feel that you have been treated less favourably because of your part-time status. Ultimately, you could bring a claim in the Employment Tribunal for discrimination on the grounds of your part time status or sex.
There is a strict three month time limit for bringing such claims which runs from when the act of discrimination/less favourable treatment takes place. You may also have grounds to pursue a claim for unfair constructive dismissal if you have been employed for the requisite qualifying period of employment.
I would recommend seeking professional legal advice before taking your next step to discuss your situation in greater detail.