Got a problem?

Been treated unfairly? Do other people get a better deal than you? Do you think you might be being discriminated against? Check out our problem page to find out what advice our discrimination expert, Richard Leong, gave to other readers, or ask him your own question using the feedback form at the bottom of the page.

Too scared to go to work

Dear Richard
I am 21 years old. I have been working for a large supermarket chain since October 2008. I have Neurocardiogenic Syncope (NCS) which causes me to have faints/fits and low blood pressure. I was diagnosed with this when I was at school.

Since May 2009 I have been asking for an occupational health assessment and keep on being told that it will be done 'soon'. Last month I was off work for two weeks with a doctor's certificate saying I was unfit for work due to my NCS. Because of this time off I am now in trouble because of the absence policy.

I had previously been off with stress, food poisoning, tonsillitis, a fall at work and NCS. My underlying NCS makes other illnesses such as tonsillitis worse and can be triggered by stress. My boss says that since I have not been off directly with NCS for 18 months I 'do not have an underlying health condition'. He is reluctant to give me an occupational health assessment preferring to threaten me with a written warning.

Now I am depressed and anxious when I have to go to work which is making my NCS worse and making me have more fits than usual. My doctor has said some adjustments need to be made for me at work. I do not know what to do. I used to love my job but now I am too scared to go to work in case I am unwell there as I feel as though I am not being believed. Please advise me what to do. Thank you in advance.

Richard says:
I am sorry to hear about your problems at work, but you do have legal rights at the workplace. The Disability Discrimination Act protects workers from discrimination at work, and places a legal burden on employers to make reasonable adjustments to allow workers to cope at work. Your medical condition is long term, since you were diagnosed with Neurocardiogenic Syncope (NCS) as a schoolchild. The symptoms of faints and fits are significant enough to affect your normal daily activities. It seems that you are a disabled person, but you will need a medical report to confirm this.

Your employer should at the very least have referred you for an occupational health assessment to confirm that you disabled and recommend what 'reasonable adjustments' are required. If there is a dispute about whether you are disabled or what reasonable adjustments are needed, then you can obtain your own medical report from your doctor. I understand that your own doctor has confirmed that you need reasonable adjustments; you must show your employer this doctor's letter and insist that such reasonable adjustments are implemented.

Reasonable adjustments would include: obtaining a company medical report, have a consultation meeting with you, using a separate sickness procedure, ignoring existing and previous sickness absences, giving you more time to recover, arranging a health and safety risk assessment, changing your job times and job duties, etc. These adjustments should be discussed and agreed with you.

You are understandably concerned about your absence from work and possible disciplinary action. Even though you are presently covered by sick notes, long term absence is potentially a fair reason for dismissal.

However, as a disabled person, your employer must treat you as a special case compared with non disabled workers on sick leave. This includes not subjecting you to the normal sickness policy. Check the staff handbook to see if there is a separate sickness procedure for disabled workers on sick leave. If you are arguing that your previous sickness absence for stress and fall at work, for example, were complications of your NCS condition, then these too should be treated as part of your disability and not counted as ordinary sickness absence. Whether these secondary medical conditions are symptoms of or the cause of your NCS, you will need a medical report to confirm the link between your NCS condition and these related conditions. Your boss' medical opinion is that of a lay person, and he should instead obtain expert medical opinion from the company doctor.

There is also a health and safety issue involved of the risk of fainting and having fits at work. If you have a trades union or staff representative, you will need to raise this issue with them. The company should arrange a risk assessment for you.

An employer of this size and resources ought to have an equal opportunities policy and provide training to managers, so that they deal with your situation as one of making reasonable adjustments matter rather than a disciplinary one. Your manager should really be getting advice from Human Resources about how to handle your situation.

I would advise you to lodge a grievance (check the handbook for the grievance procedure and see our guide), complaining that you may have been discriminated against on the grounds of your disability, by failing to make reasonable adjustments. Your employer should investigate this complaint. Management should be treating you with understanding and sympathy rather than threatening you with disciplinary action. Written warnings are not helpful and dismissal should be the last resort, only after the reasonable adjustment route has been tried and exhausted. You should certainly not return to work until your doctor pronounces you fit to work.

You have a long term medical condition that impacts on your work attendance and work performance. As a disabled worker, the law requires your employer to treat you more favourably than a non disabled worker. This may be inconvenient and costly to the company, but this is something that the law requires. You should remind your employer about your legal rights and their legal duties. I wish you good luck.

Nothing is being done to help her

Dear Richard
My wife suffers from multiple sclerosis (MS). She was originally diagnosed 15 year ago but has been in remission since then until November 2009. At this time she had a relapse and this was confirmed by an MR scan in January 2010. Since then she has been seeing various people including MS specialist nurse, Neurologist, Neuro consultant, occupational therapist and a physiotherapist. At the end of January 2010 we found out that she had fallen pregnant.

She works for a multi national company as a claims manager. She would normally work 9-5 Mon-Fri in an office building. Her work consists of constantly using a computer and obviously writing claims details etc.

She has been on sick leave since November, which has been authorised by her GP since day one. She has spoken to her line manager, HR department and also occupational health. Everybody she needs to notify has been notified at the correct time.

At this stage she is physically unable to perform the duties she was doing before she had her relapse. She has said to work that she is willing to go back to work but doing something else (working in a post room or reception etc). This was mentioned around March 2010. To date we have heard nothing from the company at all. It's almost as if they are trying to ignore her as nobody is doing anything to help. In a way it appears that they are waiting for her to go on maternity leave and hope everything gets forgotten. They are fully aware of the pregnancy and relevant paperwork has been sent to them, which in turn has had to be replaced as they 'lost' her MatB1 form.

We feel that nothing is being done by the company in anyway to help my wife. At no point has she refused to go back to work. She is still off sick on her doctor's advice as she cannot perform the duties required due to her MS. She is more than willing to go back to work but it seems nothing is being done to assist her.

Any help would be much appreciated.

Richard says:
The first thing to say is that multiple sclerosis (MS) is a medical condition that is automatically recognised as a disability under the Disability Discrimination Act, regardless of whether it is in remission or relapse. Therefore, there is no need to prove that your wife is a disabled person for legal purposes.

As a disabled person, your wife has enhanced employment rights, the most important of which is that her employer has a legal duty to make 'reasonable adjustments' to help her return to work and then help her to cope at work. Reasonable adjustments could include: transferring her to the post room or reception (with no loss of pay), ignoring her sickness absence, paying her sick pay, changing her job duties and hours, giving her more time to recover, providing her support and rest periods at work, amongst others.

Have you seen the occupational health report? Does it mention that she is disabled and needs reasonable adjustments and which ones? Has the company followed and implemented the occupational health therapist's medical advice? You can of course obtain your own medical report from her general practitioner or consultants to answer these questions, and then send the report to the company.

It seems that management's attitude to this situation is 'out of sight, out of mind'; however, they are failing in their legal duty to deal with the matter and make reasonable adjustments. This is unacceptable for a company of this size and resources. The company should make arrangements for return to work meetings to agree a programme of a phased return to work, or discuss how she can work at home (with a mobile phone and laptop).

Pregnancy and maternity give your wife further employment rights: risk assessment, maternity leave, maternity pay and the right to return to work. If her employment rights are further violated, then she may have a sex discrimination claim against the company.

Your wife's immediate remedy is to file a grievance to the company (see our guide), complaining of their failure to make reasonable adjustments. Have a look at the company's grievance, equal opportunities, sickness, and maternity policies, to see what her contractual rights and duties are.

Your wife has been on sick leave since November, which will inevitably extend because of maternity leave. A reasonable employer should not allow an employee to 'rot at home', but take meaningful steps to return her to work with reasonable adjustments. You can inform the company that there are disability organisations that provide advice and guidance to employers on supporting workers with MS.

The company is clearly comfortable with your wife's absence from work, since her job is probably being covered by someone else (check whether this person is a full time, non disabled, male worker). I am afraid that the law cannot force the company to help her return to work, and there is a real danger that she might remain on sick leave for years. It may come a time when she will have to force the issue and compel the company to take her situation seriously and bring a tribunal claim against the company for discrimination (see the link on the right hand side for more information on tribunals). She will need further legal advice on this option.

Why do I have to pay six months rent in advance?

Dear Richard
I'm an international student from Sri Lanka, studying at a university in England. I want to share a house with a group of friends from my course next year, so we've started looking for somewhere not too far from campus. We've found a nice place, more or less within our budget but the landlord insisted that I pay six months rent in advance! My English friends don't have to do this because they have an English 'guarantor'. But the landlord says that because I'm from abroad he won't accept my parents as guarantor.

Can he do this? Is it discrimination?

Richard says:
I am sorry to hear about the way you have been treated.

There seems to be several questions that need addressing: why is the landlord asking for personal guarantors and not deposits? Why are English students not required to pay six months rent in advance? Who exactly are the personal guarantors of the English students? Have you been subject to race discrimination by this landlord?

The Race Relations Act covers discrimination in rented accommodation, protecting existing and prospective tenants against racist landlords.

The Act prohibits a difference in treatment (the legal term is direct race discrimination) on the grounds of race, colour, national and ethnic origins and nationality.

Therefore, you are covered by the law as a protected minority seeking rented accommodation.

It is unlawful for a landlord to offer rented accommodation on less favourable terms on racial grounds, including the level of rent, the period of tenure, rent in advance, deposits and personal guarantors, loss of deposit, disrepair, and other terms of tenancy.

It is also unlawful to refuse to offer rented accommodation or eviction or harassment of tenants on racial grounds.

It is unusual for the landlord to insist on a personal guarantor rather than a deposit. However, asking you for a personal guarantor is not race discrimination if the landlord has also made it the same condition for a tenancy with English students, for there needs to be a difference of treatment.

It seems that English students have not been asked for six months rent in advance, whereas you have been. This may be race discrimination in that you have been treated differently on the grounds of race.

Landlords sometimes place more onerous terms of tenancy on students because (rightly or wrongly) they perceive them to be less reliable tenants. But such burdensome terms of tenancy should be applied consistently to all tenants, rather than targeting certain racial groups.

The most important thing is to find out who exactly are the personal guarantors of the English students: are they English business contacts (for example, a bank or employer) or English parents? You must compare like with like. If they are English parents, then you may have a race discrimination case based on the fact that the landlord prefers personal guarantors (parents) that are English rather than Sri Lankan. But you cannot compare a bank with a parent.

You may consider persuading one of the English students to pose as a prospective tenant with this landlord, and see how they are treated. Are they offered more favourable terms of tenancy?

However, there is an exception to the law mentioned above. The law against a landlord letting premises on racial grounds does not apply to rented accommodation that houses the landlord or his relatives. In other words, the landlord (or relative) is living in the premises he is letting. The law prohibiting discrimination applies only to premises that the landlord or relatives do not share with tenants as his principal residence.

You may want to check the Equality and Human Rights Commission website which has a code of practice that landlords are expected to abide by in renting out premises - see the link on the right hand side.

You might also check out the English student's tenancy agreements, to see how their terms of tenancy differ from yours.

Did the landlord use a letting agent or deal with you directly? Letting agents that obey racist instructions from landlords are guilty of race discrimination also. If the letting agent is innocent, then you might consider informing the agent that one of their landlords is acting unlawfully in his treatment of tenants.

There are several non legal channels of complaint. First of all you could try your student advice centre or student union. The Office of Fair Trading can give guidance on unfair terms of tenancy. The Housing Ombudsman can deal with complaints against social landlords (for example, housing associations). The ARLA (Association of Residential Letting Agents) is an umbrella organisation for letting agents, where complaints against one of its members can be lodged. See the links on the right hand side.

Your legal remedy however is to bring a race discrimination claim against the landlord or letting agent at a county court. You will need specialist advice on this from a lawyer. As a student, you may be eligible for legal aid.

This seems to be a common problem among overseas students. I hope that my advice will help you and others in a similar situation.

Do they have to interview me?

Dear Richard
I suffer from MS (Multiple Sclerosis). I live in England and work full time for a British Company. I applied for a job in China, with my company. My company advised that I meet the requirements for qualifications and experience. I've heard unofficially that an appointment has been made. I was never given an interview. Despite several calls / e-mails, my company has not advised officially.

(I was also under notice of redundancy at that time too. I still am. But I don't think it makes any difference on this issue.)

Is there any obligation on my company to interview me? Could this possibly be considered as discrimination? I can't think of any reason other than my MS why they would have treated me in this way.

Richard says:
Contrary to what you say, the redundancy issue is relevant, not only to the failed job application but also to any subsequent termination of your employment. You have rights both as a disabled person and someone under notice of redundancy, and the two issues are connected.

I am presuming that the company was aware of your medical condition. Multiple Sclerosis is a progressive medical condition, and as such, you are automatically recognised as a disabled person under the Disability Discrimination Act. In other words, there is no need to prove that you are disabled; you only need to show that you have MS.

Under the Act, the company has a legal duty to make 'reasonable adjustments' to allow you to cope at work. The main reasonable adjustment would have been to allow you to compete for the job without going through the normal competitive process, exempting you from the sift process, the job interview and any job assessment tests.

It seems that the company has failed to make these reasonable adjustments, and indeed, failed even to shortlist you or offer you a job interview. The company should have given your job application special consideration. There is perhaps an argument to say that the company should have actually offered you the job, as a reasonable adjustment.

Although making such reasonable adjustments might seem like treating you more favourably than other non disabled job candidates, this is something that the law demands and that your employer had a legal duty to do. This kind of positive discrimination is permitted under the Act.

A good employer should have obtained a medical report from the company doctor to confirm your disability and recommend any reasonable adjustments. You might consider getting such a medical report from your own doctor and sending your employer a copy.

Employment law requires the company to go through a proper redundancy process, including making efforts to find you alternative work to avoid the redundancy. Check if the company has a redundancy policy, or check the ACAS code of practice (see the link on the right hand side).

Being under notice of redundancy, the company has a duty to try to find you alternative work, to avoid the termination of your job. The job in China could have been a suitable alternative job, in which you should have had priority over the other candidates not under risk of redundancy. Moreover, being a disabled person should have given you additional priority over other non disabled workers. It seems that none of this happened and the company failed to treat you as a special case, as required by law.

Do you believe that you have been selected for redundancy because of your disability? Do you believe that the company is trying to get rid of you or failing to redeploy you on medical grounds? There may be a link between the job application and redundancy to explain this pattern of behaviour - namely, your disability.

The company is not giving you any feedback on your unsuccessful job application. If you suspect that the company failed to offer you the job because of your disability, you should file a formal grievance - see our guide and check the company's grievance policy.

Moreover, you could lodge a discrimination questionnaire to the company. This is to help you gather evidence to show that you are being discriminated against. You could ask questions like: Why did you fail to make reasonable adjustments? Why did you fail to offer me the job under the redundancy process? What are the successful candidate's qualifications and experience, and was the successful candidate disabled or under notice of redundancy? Were they an internal or external candidate? Why was I not offered the job in light of my experience and qualifications? Does the company have an equal opportunities policy and give equalities training? Did the company follow its own policies and procedures? Is my disability the reason for not getting the job or being selected for redundancy?

The company has eight weeks to reply to the questionnaire with adequate answers.

Your employer should have a consultation meeting with you prior to any redundancy dismissal, to seek ways of avoiding the redundancy. At this meeting you should impress upon your manager their legal duties towards you as a vulnerable employee and to give you priority treatment if another job vacancy becomes available in future.

You have the right to bring a tribunal claim (a claim in a kind of court which deals with employment problems) against the company for disability discrimination. There are however some risks of reprisal in doing so, since you are under notice of redundancy. If you find yourself selected for termination by redundancy because of complaining, the law does protect you against such victimisation. As an 'at risk' employee with the company, it's very important that you seek legal guidance and adviceon this option before taking any steps

Can they force my pregnant daughter to leave school?

Dear Richard
My daughter's 16 and recently had a baby. It was quite a complicated pregnancy so she had a lot of time off school. She wants to stay on next year to repeat her GCSEs. But the school have said she'll have to go to the local college because they don't have the facilities to 'cope' with her. Her current school is only a ten minute walk away and the college is an hour away. Given how tired and busy she's going to be as a new mum, that's quite a difference. Can they force her to leave?

Richard says:
Pregnancy and motherhood amongst school pupils is not uncommon and schools should handle such situations according to their policies and procedures. The central issue is not so much your child's travelling time to school or college, but whether she will be provided with suitable full time education.

I am assuming that your daughter is being forced to leave school rather than merely being persuaded to leave. The questions that need considering are:

• What does the school mean by 'cope with her'?
• What are the schools and parents duty to educate children?
• Do schools have special duties towards pregnant pupils or young mothers?
• What are the school's power and duty in relation to school exclusion?
• What are your available channels of complaint?
• Do the school's actions amount to sex discrimination, and if so, what is your remedy?

In all this, I am sure that you agree that the best interest of your child and her baby is paramount.

The Education Acts place a duty on parents to ensure that their children are educated and place a duty on Local Education Authorities (LEA) to provide suitable schools. Children aged between 5-16 years old must receive suitable full time education. The education need not necessarily be at a school, but can be in the home environment, so long as the child is receiving suitable full time education. Parents can educate the children themselves or use a tutor. You should contact your Local Education Authority (LEA) about this option.

The Education Act 1996 states that if a pupil cannot attend school because of pregnancy or motherhood, the LEA has nonetheless a duty to provide suitable full time education for that child. Lack of school resources is not a justification for failing in this duty. Moreover, pregnancy or motherhood cannot be used a reason for school exclusion (see sex discrimination below). Health and safety concerns should not be used as a reason for exclusion either. The school should aim to keep the pregnant pupil or school age mother in learning, even if this means keeping the absent pupil on the school register for a period of time. A pregnant pupil is entitled to 18 weeks of authorised absence, to cover the time immediately before and after childbirth.

Discrimination on the grounds of pregnancy or motherhood is covered by the Sex Discrimination Act, whether at the workplace or at educational establishments like schools. It is unlawful to directly discriminate against a pupil on the grounds of pregnancy or maternity, in terms of school exclusion or anything else that would disadvantage them. Therefore, pressure to leave school or school exclusion would be unlawful if it were on the grounds of your daughter's pregnancy or motherhood. Your legal remedy would be to sue the school for sex discrimination at a county court (this is a very complex area of law - see below).

But there are several other channels of complaints that you could explore. Firstly, arrange an informal meeting with the teacher and head teacher to discuss your child's level of attendance and any of her special needs. Check if the school (or local authority) has a policy on pupils who are pregnant or young mothers. The next stage could be to approach the school governing body, using the formal complaints procedure. Ask for a copy of the complaints procedure. If this fails, you might consider a complaint to your local authority (or even to your member of parliament). And finally, you can contact the Secretary of State for Children, Schools and Families. A complaint to OFSTED (education watchdog) might be considered, since they have the power to investigate complaints and inspect schools (if a child's personal development and wellbeing is being neglected). There might also be self help groups in your locality (check your local library) or on the internet.

The school's main concern is about your child's attendance or dropping out of the educational system altogether. But your daughter's wish to repeat her GCSE should allay such fears.

The school should have a named teacher, whose role is to provide support for pupils in such a situation. The designated teacher's function should include liaising with the child's parent, giving information about social services and medical services, childcare support at home, and issues about confidentiality and any school bullying. Find out the name of this teacher.

Given the importance of your child's education and her baby's wellbeing and the complexity of this area of law, I strongly advise you to seek specialist advice from a solicitor specialising in education law.

Staff were divided into black and white

Dear Richard
I have been off work coming up to a year as a result of work-related stress/depression.

The NHS trust I work for has been made aware of my concerns as I experienced bullying at the hands of a new acting manager. This manager made comments to other members of staff about my capabilities as deputy manager. Statements were made in reference to slavery that I found offensive. The staff was also split into two groups in order to manage patients' notes; it was clearly divided into one group of black staff and the other white.

As a result of the continued stressors I sought employment elsewhere and was offered the job on condition of a reference. The new manager was asked to submit a reference and the job offer was withdrawn. I have since had a copy of the reference and disagree with its contents.

The Trust are aware but appear to be siding with the acting manager, for instance a grievance was submitted and it has taken almost six months to be addressed, during which time I have gone into a no pay situation. I have asked to be paid my annual leave but have been refused. I have also asked, with support from occupational health to be transferred and told no. I am aware that other staff members who have expressed concerns after me have been granted transfers.

Richard says:
You seem to have a myriad of problems at work, but the common thread appears to be mistreatment at the hands of the new acting manager. Your work situation seems to have passed the point where it can be resolved internally. My advice is to file a tribunal application - see the link on the right hand side. You have several employment claims against your employer.

You may be recognised as a disabled person because of your depression, depending on its severity and length. I advise that you get a medical report from your doctor or occupational health to confirm your medical condition. Your employer has a legal duty to make 'reasonable adjustments' for disabled employees to take steps to return them to work. Reasonable adjustments could include allowing you to work from home or even transferring you to another department, away from the new acting manager. Your length of absence is suggestive that your employer has not done enough to return you to work. Check the Trust’s sickness policy about the procedure for returning to work.

Racist bullying is completely unacceptable. Check if other black staff have been subjected to such racist name calling, or whether the new acting manager has had a history of complaints against him for racist comments. Has this person ever received any equalities training?

The apparent segregation of staff along racial lines is extremely worrying, and may suggest institutionalised racism, where characteristically the work place culture and policy and practices are discriminatory at all levels. Separating staff according to race is inherently offensive and unlawful, even if everyone is treated equally. Are NHS patients treated the same way? You may want to get your trades union involved, or contact the Commission for Equalities and Human Rights, whose function is to investigate suspected systemic discrimination occurring at large establishments.

The negative job reference that cost you a job opportunity could be 'victimisation' (the legal term for being treated worse for complaining about discrimination) because you filed a grievance. The failure to pay your annual leave and to grant your transfer request and to deal with your grievance may be part of a pattern of victimisation against you. The grievance route seems to have reached a dead end, and you remain on sick leave for the foreseeable future.

It appears as though the Trust is content to allow you remain on long terms sick leave, since they are blocking your attempts at finding another job or securing an internal transfer. This place you in a very difficult position, for the longer you remain on long term sick leave, the greater the likelihood of dismissal on grounds of capability. Legal action against your employer is usually seen as a last resort, particularly as you remain an employee. But given your dire situation, it seems that you have little option but to file a tribunal claim.

The Trust has effectively forgotten about you as an employee. You need to force your employer to recognise their legal responsibilities towards you and to take meaningful steps to return you to work and to address the endemic problems of racial discrimination at the Trust. I cannot stress enough the importance of you taking immediate action, otherwise your current situation will not get any better, since the Trust presently has no incentive to take any remedial action.

Remember that you have legal rights as an employee, and it is very important that you seek legal advice quickly on how to enforce them. I hope that this helps.

I feel really pressured to return to work

Dear Richard
I have been off sick with severe depression since mid January. Problems like attempted suicide, suicidal thoughts and sleep problems. I have received a call from my local Human Resources manager telling me to ask my GP about a part time return to work, also telling me they need me. I feel really pressured by this, I'm finding it hard to cope as it is. Can they do this?

Richard says:
I am sorry to hear about your depression and the situation at work, of course, does not help.

It appears as though your employer is pressuring you to return to work, even though it is on a part time basis. Can they do this? The answer is that no one can force you to return to work against your will, but of course there is always the risk of losing your job for long term absence.

So long as you are covered by sick notes, any short term absence should not be of concern. I presume that you are keeping your employer regularly informed about your medical condition and the likelihood of returning to work. But your absence is now becoming long term - and this could be of concern.

Your employer has a legal duty to make 'reasonable adjustments' for a disabled employee (I am assuming that the severity of your depression classifies you as a disabled person), including an agreed programme to return you to work. Such a programme should consist of a medical report to give advice on the likelihood of returning to work and measures to assist you in doing so. The company should also have regular welfare meetings with you, possibly at your home, if this suits you better than at the company office. Returning on a part time basis could be a reasonable adjustment, but only if your doctor recommends it. Is it possible for you to work from home, with a laptop and mobile phone?

The law in such situations balances your rights as a disabled employee and the employer’s interest in running an efficient business. But clearly it would be wrong for your employer to force you to return to work when you are medically unfit to do so. But your continued absence is a worry in that long term absence can be a fair reason for dismissal.

My advice is to go to your GP and get a medical report to find out whether you are fit to return, and if so, recommendations for a phased return. Keep your employer regularly informed about your medical condition.

The risk however is that any medical report might say that you cannot return to work for the foreseeable future, and this might prompt your employer into taking disciplinary and dismissal proceedings. Any dismissal decision should take the following relevant factors into consideration: your length of service, the length of absence, the nature of your medical condition, any reasonable adjustments, are you a key worker, can someone else cover for you, your previous sickness record, any medical advice, and most importantly, your likely return date. If this happens to you get advice straight away.

Check how other employees have been treated in such situations. What does your company sickness policy say about long term absence?

It is important that you cooperate with your employer in their attempts to return you to work, particularly when giving consent to the release of your medical records, seeing the company doctor and attending welfare meetings. Your employer should treat you with sympathy and understanding and make reasonable adjustments to allow you to return to work (including giving you more time to recover). Dismissal should be a last resort, after exhausting all other alternatives. Your employer could be seen to be acting reasonably, in trying to return you to work with medical advice. An unreasonable employer would more likely go straight to dismissal or just leave you on sick leave permanently, without paying you any wages.

I am sorry that this advice is not more positive - your situation is one where there is no clear solution. But remember that no one can force you back to work if you are not fit to go. Good luck.

Am I being discriminated against?

Dear Richard
I have just been informed that I will not be getting my pay increment this year due to underperforming and absence. The reason for the underperforming is due to being off sick for five months following a major operation where I could not work due to a rather large scar and having a bag fitted to collect any remaining bad fluid. Am I being discriminated against?

Richard says:
You may have a claim for disability discrimination, in that you have lost out on pay increments because of your under performance and absence from working stemming from your operation.

You will firstly need to prove that you are disabled as recognised by the Disability Discrimination Act. This will involve showing that you have a physical impairment that has a substantial adverse affect on your normal daily activities. The law does not cover medical conditions that are short term or have enjoyed a permanent cure (such as a successful operation). You will need to show that your medical condition has lasted at least twelve months or is likely to reoccur in future. You will need a medical report to prove that you are disabled, either from your own doctor or the company doctor.

If you are disabled in the legal sense the law places a duty on your employer to make 'reasonable adjustments' to allow you to work, which could include ignoring your work absences and work performance and paying you the increments notwithstanding. Your employer could try to justify the non payment, arguing that it would not be a reasonable adjustment to pay you for work not actually done, compared to other workers. Otherwise this would be giving you preferential treatment. But the law does permit employers to treat a disabled worker more favourably than non disabled ones, even though this is a form of positive discrimination.

But you will need to show that your under performance and work absence was caused by your disability, and not for some other unrelated reason. But certainly, your employer has a continuing duty to make reasonable adjustments, irrespective of the pay increment issue, to allow you to cope at work. Reasonable adjustments could include: obtaining a medical report, a consultation meeting with you, giving you time off work for medical appointments and treatment, changing your work duties and hours, and even giving you an alternative job.

You may consider having an informal meeting with your manager about this matter and how to deal with it. From their perspective, they would be reluctant to pay you for work not done which may cause resentment with the other staff. But so long as they explain that it is reasonable adjustments to a disabled person, this difference in treatment might be more acceptable. Check what has been the practice in the past. Have workers on (non disability) sick leave or poor performance been treated the same way? Check what your employment contract says about it.

I hope that this helps.

He says he doesn’t want any 'coffin dodgers' in his office

Dear Richard
What do I do about my situation? My boss has a problem with my age (58). He has told me in a meeting he does not want any more coffin dodgers in his office. I have had the union in five times and my boss won't help sort it. HR are full of promises and don't carry them out. Management are now suggesting I have the disability called Dyscalculia (dyslexia by numbers). Please help.

Richard says:
There appears to be two issues concerning your problem at work, namely, possible age discrimination and disability discrimination.

The law prohibits harassment (unwanted behaviour that you find humiliating, offensive or distressing) on the grounds of age. The use of the term 'coffin dodger' could be construed as ageist bullying. You don’t have to put up with this: the law is there to protect you.

Is there a risk that your boss wants to force you into retirement? If so, you need to find out if there is a normal retirement age at your workplace. If not, your employer can lawfully retire you at 65 years. But you have the right to request working beyond that age. What your employer cannot do is to force you to retire at 58 years, unless this can be justified. For more information on the rules about retirement see the links on the right hand side.

I presume that your union complained five times, on your behalf. If these complaints mentioned discrimination, then you are protected against victimisation (being treated worse for complaining about discrimination) by the company.

It appears as though your employer obtained a company medical report that diagnosed your medical condition as a form of dyslexia. If you disagree with this medical assessment, you can obtain your own medical report from your own doctor. If you are diagnosed as dyslexic, you may be regarded as a disabled person, and consequently, your employer has a legal duty to make 'reasonable adjustments', to enable you to cope at work (particularly in dealing with numbers).

Reasonable adjustments could include: allocating number based duties to colleagues, giving you non number based duties, giving you time off for classes and treatment, giving you extra training and supervision, modifying equipment and manuals, and even giving you another job! Your employer should get a medical report to recommend such reasonable adjustments, and have a consultation meeting with you.

If you have a medical report already check it for any mention of reasonable adjustments to see if they are being offered to you.

Then, I advise that you get your union, an advice agency or a solicitor to help you lodge a formal grievance about your treatment at work (in writing). You need to check you company's grievance policy. You can read more about this in our guide 'Dealing with discrimination at work. How to use the grievance procedure’.

They're giving my job to someone younger and cheaper

Dear Richard
I am 21 years old and currently working as a cleaner and barmaid in a club, I have found out that I'm losing my job.

The club committee were trying to reduce staff working hours but said at a meeting that no one would lose their job. I was then told that one person from the committee and the stewardess have discussed to take shifts from me, even though this was not discussed at the meeting with other committee members present.

I am losing my two nights of bar work yet they are giving my shifts to a 17 year old, who was just a pop boy (collecting glasses) before. I was told it was so that they could pay him the lower minimum wage.

I think this is wrong as they are taking away my job and giving it to someone else. I am confused as well as upset about this matter and would be grateful if you could help me.

Richard says:
I understand that you are a 21 years old female (presumably on minimum wage), and you have lost two night shifts of bar work to a younger, 17 years old, male worker. I presume that your cleaning job is unaffected. You have heard that the reason for this treatment is so that the company can pay him less (minimum wage) than you.

The law on the minimum wage allows employers to pay differently aged workers different wages for doing the same work. But what the company has done is to take away some of your work, and given it to a younger worker, and thereby pay less minimum wage. It is illegal to redistribute existing work on the grounds of age, which is what the club seem to have done.

You may have been discriminated against because of your age. This is unlawful. The fact that the company is trying to save money is irrelevant and is not a valid defence. You may also have a sex discrimination claim if you believe that your treatment was because you are a woman. My advice is to file a grievance, complaining of age and sex discrimination. (You can read more about grievances in our guide, 'Dealing with discrimination at work'). But because of the complexity of the law, you are well advised to seek further legal advice on this matter. See 'Get advice'.

An adviser can explain your other options, for example, if filing a grievance does not get results, you can bring a tribunal claim against your employer for age and sex discrimination. If you are successful, you can be awarded compensation for injury to feelings and for the lost wages as a result of losing your work hours.
I notice that your employer may be using a 17 year old to serve alcoholic drinks. This is unlawful, since the minimum age limit is 18 years old. You and your adviser could consider raising this point with your employer. If you are victimised for raising this as an issue, the 'whistle blowing' legislation can protect you for mentioning this matter. See the links on the right hand side for more information on these issues.

June 2010