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RichardLeong NewBeen 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.

Surnames and interviews

Dear Richard

I noticed the interesting research on surnames and interviews in the Singled out? Sort it out! guide. I am white British and recently married a mixed race British African so my married surname is African. Based on the research I will be offered less interviews because of this.
Is there anything I can do if I suspect I have not been selected for interview because of my name?

Richard says:
The Equality Act makes it unlawful to discriminate against job seekers, on the grounds of race or colour or nationality or national or ethnic origin, as a reason for deciding who to offer employment. The recruitment process covers the job advert, the job application form, the short listing process, any interviews and assessments, and the decision about who to appoint. Job seekers should be assessed on their experience and qualifications and not on their personal characteristics. Information about a job seeker's race, gender, disability, for example, should not be contained in the job application form, but detailed separately in an equality monitoring form. Those deciding on who to offer employment should not have sight of the equality monitoring form until after an offer of employment is made. Therefore decisions on who to appoint should be made purely on merit.

In your case, of course your name would need to be mentioned in the job application form, and as a result of this, you suspect that you may not be invited for job interviews because of your African sounding name, even though you are in fact a British national. This is a common problem, especially with people with 'Islamic' sounding names.

The equalities law makes it an offence to treat people less favourably on racial grounds, even if the discriminator makes a mistake about the ethnicity of the victim (known as 'perception discrimination') or discriminates against a person because she is married to a person of ethnicity (known as 'associative discrimination'). Therefore, if you believe that you are not getting job interviews because of these reasons, you may well have a race discrimination claim as a job seeker against the company.

As a test, you may want to consider sending a CV or job application form, with a British sounding name (but different address) to the same company for the same job, but with the same qualifications and skills, and see what happens. This might be evidence of a difference of treatment.

The equalities law require you to actually send off a job application form and then be rejected, before you can bring a discrimination claim. Merely being put off from applying is not enough.

If you suspect that there has been discrimination, you can send a discrimination questionnaire to the company, asking questions like: why was I not invited for an interview? what is the race or nationality of the successful candidate and the unsuccessful candidates? what is the ethnic breakdown of your workforce? It can be a good idea to get advice to help you word the questionnaire.

Based on the replies to these questions (or lack of adequate replies) you can decide whether to bring employment tribunal proceedings against the company for race discrimination. If you do decide to do this you will need further advice on this option.

Not equal employment

Dear Richard
My friend works for a large company. Office workers are on a yearly wage, and get sick pay, other workers are on a hourly wage and don't get sick pay. This is not equal employment. Is this right? I was shocked when she told me.

Richard says:
I am assuming that your friend is a non office worker, and is comparing herself with office workers, and she is not being paid sick pay. Whether a worker is entitled to sick pay depends on what has been agreed in the employment contract, rather than whether a worker is paid annually or hourly or even the type of work they do.

Company sick pay entitles a worker to be paid full or half payment of their normal wages for a period of time, eligibility for sick pay depending normally on length of service. Once the sick pay stops being paid, the workers then goes on statutory sick pay (SSP) for a period, and then onto Employment Support Allowance (ESA). It seems that your friend is not entitled to company sick pay at all. She will need to check her employment contract or staff handbook about her sick pay and other entitlements. I am afraid that your friend may not be entitled to company sick pay if it is not mentioned in the employment contract, even if office workers are so entitled. This is purely a matter of contract, even though it seems unfair at face value.

However, there may be an equal pay aspect to this matter. Equality law requires employers to give men and women the same contractual benefits including sick pay, for doing the same work, unless there is a justifiable reason for this difference in treatment. But your friend will need to compare herself with male workers doing the same work or work that is of equal value (it is possible to compare office workers with non office workers). She can therefore compare herself with a male office worker. And if she is being paid less (or getting less benefits) than a male worker, then this may be discrimination on the grounds of gender. This is a very complex area of law, and she will definitely need further advice on this.

Unfortunately, companies do tend to value some types of work (and workers) as being more valuable than others, and this is reflected in the different pay and benefits offered. This is not unlawful so long as the pay and benefits are agreed in the employment contract, and any difference in treatment is not discriminatory, on the grounds of sex, race, disability, religion and belief, sexual orientation and age.

She may want to check with an office worker about other terms and conditions in the employment contract. If your friend is a trades union member, she may want to raise this matter with the union as a collective dispute involving a class of workers and any workplace collective agreement.

Good luck

They say I am too timid

Dear Richard
I started working at a well known hairdressing salon at the age of 16.

Almost straight away I found that I was being spoken to in a rude manner. Being naive I suppose I thought that this was part of the employment process and although I was getting upset things got worse.

I found that during my lunch break other senior staff and a trainee would regularly interrupt my break (usually within minutes of starting my break) and ask me to continue working. I of course did what they said but then found that other staff and trainees would be standing chatting and laughing whilst not on their break. I thought why did they stop my lunch when they could have quite easily carried out the work? I continually get shouted at and in front of customers - another trainee was allowed to stop me going to the toilet until I had completed a certain task - I have had groups of them stare and laugh at me - when I have tried to join in conversations they tell me to get on with my work - My training was stopped on one occasion because I spoke back to another trainee that used foul language against me (they were sympathetic to her and not me) - they ask other trainees politely to do a task and then ask me in a rude abrupt manner - they criticise my appearance and my hair etc.

I have told the manageress and owner several times but they say things like - 'you are to timid' or 'they are only joking' or 'you need to be stronger'. They then ask the other staff and come back to me and say they are not bullying me and that it is me that is the problem.

I have raised a formal grievance but the owner says she has established that I am not being bullied. My problem is that all my friends that used to work here have left purely because of the bullying that they suffered and now I find that it is them (the staff) against me.

I don't want to be forced out also as I am half way through my training and will find it difficult to find an employer who is willing to train me now I am over 17 years of age.

Can you give me some advice? Should and is it worth me appealing against the formal grievance decision?

Richard says:
I am sorry to hear about your appalling experience at work. Such behaviour is completely unacceptable and I want to assure you that you do have legal rights at the workplace. I am afraid that the hairdressing sector is notorious for low pay and poor working conditions, particularly for young workers. I am assuming that the other staff responsible for bullying and harassing you are significantly older than yourself.

young worker (dancer)
The Equality Act 2010 prohibits discrimination on the grounds of age. It seems that you are being treated in this manner because you are young and perceived to be naive and sensitive and inexperienced. You are being targeted because you are young. The law prohibits harassment and bullying because of age. You may make a claim for age discrimination against your employer.

You did the right thing in filing a grievance. You should of course appeal against the outcome, mentioning in the grounds of appeal the age discrimination complaint. If the appeal gets you nowhere, your next step is to file a tribunal claim. You will need to think carefully about this option, since you have worked there for less than one year and therefore you are not eligible to bring an unfair dismissal claim.

The law requires an employer to ensure that workers get adequate rest periods at work, including a proper lunch break. As a young person aged 17 years, you are entitled to 30 minutes rest period for every 4.5 hours worked. You must not be allowed to work more than 8 hours a day or 40 hours a week. Any breach of these rules is unlawful.

Moreover, as a worker aged 17 years, you are entitled to a minimum wage of £3.64 per hour (£2.50 per hour as a trainee). Any payment less than this is unlawful.

Employers perceive young workers as being unaware of their legal rights, and as a result they do not complain as much as older and more experienced workers. You have done the right thing in lodging a grievance and contacting us for legal advice. The law does provide workers with legal protection regardless of age. You should seek further advice about your options. I hope that this advice helps.

I have been suspended

Dear Richard
I have been suspended by a working men's club and believe this is contrary to the access to goods and services section of the Disability Discrimination Act. I believe I was suspended because I am the only disabled member of the club.
I believe these outdated institutions have no place in the modern world. Women are not allowed to become members and can only enter through their husband. There seems to be no place for disabled people or people of any colour either.
Can you please advise?

Richard says:
I am sorry to hear about your problems at the working men’s club, where you are a member presumably. Your membership has been suspended because of your disability and the club seems to have a colour bar. You believe that such discriminatory practices by private clubs should be made unlawful.

The Equality Act 2010 now covers associations and private clubs. An association is where there are at least 25 members and have rules about who can be a member of the association. Private clubs include social clubs, sport clubs and, of course, working men’s clubs.

It is unlawful for associations and clubs to discriminate against members, prospective members and guests on the grounds of the race, sex, disability, sexual orientation, and religion (but not age), in terms of admission, membership fees, benefits, suspension and expulsion, amongst others things.

However, the equalities laws do provide for exceptions to this principle of non discrimination, allowing certain private clubs to restrict their membership only to those who have shared needs and interests and to people who wish to associate only with others like themselves. Such private clubs include working men’s club, who can lawfully restrict membership to men only and can lawfully exclude women as members. (but the law does not insist on this, and indeed many working men’s clubs have women members). But a working men’s club must be open to all men, and must not exclude membership to men because of their race or sexuality or religion or disability.

You believe that your suspension of membership is because of your disability. Most clubs and associations have a written constitution and rules about circumstances where a member can be suspended or expelled. Check your own working men’s club’s constitution on disciplinary matters to see whether your suspension is according to the rules (is there a right of appeal?). But suspending your membership solely on the grounds of your disability is almost certainly unlawful.

You are concerned about the way the working men’s club is treating women and ethnic minorities, whether as men (of colour) trying to enter the club as members/guests or women being allowed to enter the club only as wives of existing members.

A private club can lawfully treat members and guests differently. But a club cannot lawfully treat different guests differently, for example, giving preferential treatment to white guests over black guests. A club ban on the basis of colour or race is therefore definitely unlawful, whether they are prospective members, members or guests. But a working men’s club can lawfully restrict entry to women only as guests.

Women guests being allowed entrance only if they are the wives of male members sounds unlawful, if the club would not allow entry to male or female civil partners of gay and lesbian club members respectively. This would be discrimination on the grounds of sexual orientation, which would be unlawful. A private club must treat all their guests in the same manner.

The equalities laws on associations and clubs try to strike a reasonable balance between an individual’s right not to be discriminated against and a club member’s right to associate only with others who are like them or share the same taste and interests. Discrimination on membership is allowed only if it can be justified. Some of your working men’s club policy and practices on membership seem discriminatory and unjustifiable.

At your private clubs’ next annual general meeting, you might consider raising the issue of membership and equalities as part of the agenda, and ask that the constitution and rules be amended to be consistent with the equality laws. You may want to obtain further help from the Equality and Human Rights Commission (see the link on the right hand side), which is challenging the British National Party (BNP), a political organisation that presently has a ‘whites only’ membership policy. The Commission has a website where practical guidelines on equalities for associations and private clubs can be downloaded.

I hope this advice helps.

I feel I've been victimised for taking out a grievance

Dear Richard
Early this year I requested advice for some problems I am experiencing at an NHS trust. I would like to ask for further advice for the same problem (separation of black and white staff and bullying from an acting manager).

I submitted a grievance in October 2009 it was not heard until May 2010. Witnesses were not approach until a year after the grievance and are now stating that they can't remember. The manager has stated that she has no comment and was allowed to change the investigating officer. I was not informed prior to this happening. A letter from a supporting witness was not included in the findings.

I have now been off work for 16 months only to be told they are moving me to another place of work that is much further from my home than my previous work place. This has caused me problems with child care. I also went into a no pay situation and have occurred a lot of debt as a result. I have always asked to be moved to another area while the investigations were carried out.

What can I do next as I feel I have been victimised by the trust for taking out a grievance?

Richard says:
Yes, I do recall your previous question. You have now filed a grievance, as I advised, and have concerns about the way your complaint is being handled. You need to check the trust's grievance policy about the grievance investigation process and how long it should take. The ACAS code of practice (see the link on the right hand side) gives guidelines about how a grievance should be reasonably handled.

You filed the complaint in Oct 2009 but the trust did not respond until May 2010. This delay is unacceptable. Any fair outcome to your complaint is compromised, since witness memory fades and employees leave the trust. Ideally, the investigating officer should be from an external body and independent of the trust. You should have been kept informed of the progress (or lack) of the grievance.

It seems that you now have the investigation report findings and recommendations. Is it positive or negative? The next stage in the process should be a grievance meeting to discuss the investigation report (stage one). You have the right to be accompanied at this meeting, normally, by a work colleague or trades union representative. Management will then decide whether to uphold your grievance in writing with reasons. If you are dissatisfied with the outcome, you can go to stage two, namely, appeal against the grievance outcome. Remember the time limits for appealing. Again, there should be an appeal hearing chaired by a more senior person. Individuals implicated in your complaint should not be part of the handling of the grievance process.

It is uncommon for employers to uphold grievances that allege discrimination, for the obvious reason that they are anticipating a tribunal claim, and do not wish to make any admissions of any discrimination, that can be used as evidence against the trust at court. This is particularly so as your complaint is about racial segregation. So, do not be surprised if your grievance or appeal is not upheld.

Your next step is to bring a tribunal claim. But you will need further advice if you are considering this route. Your trades union can help you or get in touch with an advice agency.

Management is intending to transfer you to a place of work not of your choice. This will cause you child care difficulties. You should try to agree a place of work more suitable to your needs, again, with the help of your trades union. If you believe that this proposed transfer is an act of victimisation, you can of course file another grievance.

Your employer is clearly reacting to your grievance, which is a very serious one of systematic race discrimination in the workplace. The trust should be reviewing their own equal opportunities policy and practices, as a public body that has equalities duties under the law. You have raised a very important matter and the trust should not be treating you as a trouble maker. Remember that you do have rights and protection under the equalities law. It is very important that you get advice to help, either from a trades union or an advice agency to help you uphold these rights.

Take it or leave it

Dear Richard
I have just had my 60th birthday and am awaiting my small NHS pension. I receive my state pension in January 2011. I have a new contract to sign at my place of work, where I have worked for the past 22 years. I am now on a yearly contract that states I am not entitled to sick pay for the first three days of absence. My 18 hours will be worked as of the needs of the practice. I have been asked to work a mix of shift patterns.

I feel undermined by their actions after years of loyal service. I have not as yet signed my contract. I was given no choice when presented with my new contract - more or less take it or leave it.

I feel I have been treated in an unprofessional way. I do not really wish to continue working for the practice. Awaiting your advice.

Richard says:
It appears as though you have been offered a new contract at work to sign. You have not signed it yet because of the onerous terms and conditions contained in the contract, among which include unacceptable contractual terms on sick pay and work hours. It is a yearly fixed term contract. You are considering resigning and claiming your state pension. You are 60 years old and have an NHS pension.

I am presuming that you were previously on a non yearly contract and on different contractual terms. Legally speaking, any fundamental change in the employment contract should be agreed between the parties, failing which it would be a breach of contract, allowing the injured party to either dismiss the employee or the employee resigning and claiming constructive dismissal. It sounds as though the changes to your employment contract are fundamental, both in terms of the nature and contents of the contract.

You could speak with your employer to ask why these changes have been made, why they have not been agreed with you beforehand, whether it is part of a collective agreement with the trades union, and whether they have happened to other workers. Your legal remedy is to sue for breach of contract (you will need further legal advice on this course of action).

Whether you have an age discrimination claim depends on how other younger workers (doing the same job) are being treated. Are they being offered fixed term or permanent contracts? Are their terms and conditions more favourable than yours? You will need to find out what contracts are being offered to younger workers doing the same job as yourself.

The Age (discrimination) Regulations (soon to be the Equality Act) prohibits direct discrimination on the grounds of age, where (say) an older worker is treated less favourably than younger worker on the grounds of age. If a difference in treatment is shown, the employer will need to explain the reason for this treatment. But even if the difference in treatment on the grounds of age is shown, the law provides the employer with a legal defence, whereby the employer can justify this treatment, usually for business or health and safety reasons. However, in your case, it will be difficult to see how such a defence could successfully operate to justify offering you less favourable contractual terms than younger workers.

Since you have an NHS pension is it very important that you get advice on whether and how an annual fixed term contract and its terms and conditions might impact on your pension. If you are a trade's union member, you should seek advice from them on the pension issue.

Although you are unhappy about the terms and conditions of the new contract, it is the implications for your NHS pension that is of concern. I fully appreciate your reluctance to sign the new contract and your wish to leave your job. I would advise you not to sign the contract until you have obtained the pension advice. And if you do sign, you should sign the contract under protest. You should lodge a grievance about this matter.

You can of course consider making a claim against your employer for age discrimination at an employment tribunal (again you will need Get discrimination advice).In any event, I would advise you not to resign from your job until you have obtained advice about your pension and any possible exit package.

I believe they treated me differently

Dear Richard
Dscn0532 Op Can a person who has the statutory 'right of abode' be denied the right to work simply because their passport has expired?

I am Bangladeshi but have the right of abode in the UK, meaning that I am free from immigration control, through my mother who is English born and British. It also means that I have the right to work in the UK.

I applied for a contract through an agency and was asked for immigration documents to show that I had the right to work in the UK. I showed my certificate of entitlement to the right of abode on my expired passport along with a copy of a new passport. But these documents were rejected on the grounds that my passport containing the certificate had expired.

I believed that the agency treated me differently on the basis of my being a non EU passport holder and forgot to treat me as if I was a British citizen which is one of the privileges of having the right of abode. I do not know how they treat other people but as far as I know I was the most skilled developer with the particular skills. The clients for whom the contract was for were happy to make me an offer and it was at this point the problem began. I have also worked for the agency before and my expired passport on several occasions never caused a problem.

Is this discrimination?

Richard says:
As I understand your question: it seems that you are a Bangladeshi national with right of abode to live and work in the UK. Your right of abode entitlement is certified on your expired Bangladeshi passport, but not on the renewed passport. You applied for work but were turned down because the agency was not satisfied with the immigration documents you provided, as proof of your right to work in the UK. This agency however had previously accepted your expired passport as adequate proof. You are asking whether this was an act of race discrimination, and specifically, can you be denied work because of your expired passport.

You are correct in believing that your right of abode entitles you to the right to work in the UK. But this complaint is not actually an issue of 'entitlement to work' but an issue of 'proof of entitlement to work'. No one, not even the agency, is disputing that someone with the right of abode also has the right to work. The problem is 'proving' this right to work with acceptable immigration documents.

As you know, immigration law places a duty on employers (and agencies) to check the immigration documents of job seekers, to verify that they are entitled to work in the UK. It is a criminal offence for employers to hire workers who work illegally in the UK. But of course an agency must treat all job seekers in the same way, regardless of race and nationality, in dealing with job applications.

I am presuming that the agency as a matter of routine checks the immigration documents of all job seekers. If the agency checks some job seekers but not others, and there is difference of race and nationality between them, then this could be race discrimination. Agencies must not ask for immigration documents only from those job seekers that look or sound foreign. This would be unlawful.

We need to look at the manner in which your passports were viewed and assessed. You provided an expired Bangladeshi passport that certified your right of abode and right to work. Your renewed Bangladeshi passport however was not so certified. The question is whether the agency was acting mistakenly or reasonably or discriminatory in rejecting these immigration documents as proof of the right to work.

The agency could argue that it had been mistaken in failing to spot that the right of abode and right to work transfers automatically from the expired passport to the renewed one, and that they should have accepted your passports are valid proof of your right to work.

Equally, the agency might argue that the passports provided were inadequate as proof of the right to work, and that their rejection of them was an entirely reasonable decision to make.

Of course, the agency's decision might have been prompted by racist considerations.

Whether the decision made was a mistake, reasonable or discriminatory depends on how other job seekers in similar circumstances were treated. To prove race discrimination, you would need to show that, for example, a white Canadian national would have had his uncertified renewed passport accepted as valid immigration documents.

A possible difficulty with your complaint is that, objectively speaking, it does not seem unreasonable for an agency to refuse to accept a renewed passport that is not certified with the right of abode. The agency could legitimately argue that they reasonably believed that the right of abode had been withdrawn, which explains its non certification in the renewed passport. But equally, the agency could be referring white Canadian nationals, for example, with similar passports issues to employers for work. Basically, to prove race discrimination, you would need show that the agency's refusal was because you had a Bangladeshi passport, and if you had a Canadian passport, you would have been treated differently. In other words, it was your race and nationality that influenced the agency's decision, rather than any inadequacies of your immigration documents.

To confirm or allay your suspicions, I would advise you to find out about the comparators (the other job seekers): who was accepted and who was rejected? What were their nationalities and races? Did they have similar passport issues like you?

You could also lodge a race discrimination questionnaire with the agency, asking questions like: Why have you rejected me now but not previously? What is the breakdown of job seekers rejected and accepted, their nationalities and races and their immigration documents? What are the reasons why some are accepted and others rejected? Do they have an equal opportunities policy? Do agency staff have any training or knowledge in immigration and nationality law? In what way were my immigration documents defective?

If you believe that the agency rejected you on the grounds of your nationality or race, you can claim race discrimination under the Race Relations Act (soon to be the Equalities Act) for direct race discrimination. As a job seeker, you can bring an employment tribunal claim for the loss of a job opportunity. If as a result of bringing in a claim for discrimination against the agency, they decide to take you off their books, you can sue them further for victimisation. You will need further advice if you decide to take this route.

In the meantime, you need to get the right of abode certification onto your renewed passport and try the agency again to see if makes a difference. If you are rejected again, this will be evidence of race discrimination. Of course, if you happen to find a Canadian national with the same passport issues as yourself, you might consider asking him to apply to the agency and see what response he might get.

I hope this answers your question.

I have been severely victimised

Dear Richard,
My problem is that I have been on long term sick with depression and anxiety (on anti-depressants) since raising a grievance against my line manager at the beginning of this year. I work at a supermarket headquarters. I trained several people (white) who went on to promotion whilst I, having 10 years service was held back because my manager (the one I complained about) didn't do my reference, any one to one support and was downright incompetent. After the hearing which took place while I was sick, I was left shattered when he got away with it. He received corrective measures and I got nothing. Having lost out on the internal vacancies - his eventual reference (after the closing date), being poor to say the least, especially when compared to those he did for my white colleagues, I was broken...

Sikh manI have appealed the decision and this was granted just eight weeks ago, but the four week investigation again turned a blank! I have been mistreated, sent to bogus meetings and have been severely victimised since making the original complaint on the grounds of ethnicity (I am Asian Sikh) and I believe, with evidence to hand, that the supermarket human resources team have not assisted me and maliciously caused me to stress and suffer grave anxiety.

I wish to resign and claim constructive dismissal but do not know if the treatment I have experienced counts. I do not know what to do.

I will file another grievance re - victimisation, and express these concerns. My union refuses to represent me because I joined a few months ago, and they believe my complaint stems from the beginning of the year. This has also been a set back for me.

I have young children, and suffer so much, I can't face going back to work, the company has blatantly ignored my repeated requests to make a sensible settlement and put matters right.

What can / should I do? Please help.

Richard says:
I am sorry to hear about your workplace problems. As I understand your query: that you are presently on long term sick leave with depression and anxiety, that you have been overlooked for promotion in favour of less experienced (white) workers whom you had trained, that you blame your manager for holding back your career progression, by writing unfavourable references, that you have raised a discrimination grievance (against your manager), that your grievance was not upheld but you have appealed, and that you are considering resigning and claiming constructive dismissal. Moreover, you believe that you cannot return to work.

What seems to have happened is that after being denied promotion, you complained of race discrimination, and subsequently you have suffered victimisation, causing you to go on sick leave, and forcing you to consider leaving your job? This is a common pattern of workplace victimisation that you are suffering.

I will firstly advise you of your legal rights and then list what your options are in dealing with the present situation.

The Race Discrimination Act prohibits direct race discrimination (failure to promote) and victimisation (arising from your complaint). It seems that your grievances are not being treated seriously. Your next step is to file a tribunal claim against the supermarket, for race discrimination and victimisation.

Unfortunately, the law is this respect is rather a blunt instrument and, regardless of the outcome of any tribunal hearing, cannot by itself make things better for you at work. But I would still advise that you bring tribunal proceedings, if only to force your employer to take your complaints seriously and consider a reasonable settlement with you.

A meaningful resolution to this work situation requires dialogue and agreement between the supermarket and you (you will need to seek further advice). Essentially your options are:

  • resign and claim constructive dismissal; this is your worse option, since this is exactly what the supermarket seems to want you to do; and besides, constructive dismissals claims are notoriously difficult to win
  • remain on sick leave; this is not an attractive option, since you will be at risk of dismissal for long term absence and your sick pay will eventually run out
  • ask for an internal transfer or redeployment (for a trial period) at one of their stores, if this can be arranged.
  • agree a termination package with the supermarket, comprising of financial compensation and an agreed job reference. They might find this an attractive option, since it will avoid the risk of dismissing you and facing a tribunal claim. This is certainly your best option.

Of course, the ideal solution would be the disciplining and dismissal of this manager and remedial steps to return you to work. But in reality, it is often the victim that feels they have to depart, leaving the perpetrator unpunished. Unfortunately, the law cannot sort things out at work, but can only award financial compensation for wrongs done against you. But whichever option you decide, bringing a tribunal claim will certainly strengthen your position in any negotiations with the supermarket. It is very important that you get advice quickly to help you with the next steps. Good luck.

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

Woman being pushed in wheelchair 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.

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.

The law is detailed and complicated and the answers on this problem page are only a guide. So, please don't rely on any of the examples when deciding what to do about your own problem. If you think you might be experiencing discrimination it's very important to get expert advice on your individual situation.

December 2010

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