Got a problem?

Got a problem? Been treated unfairly? Do other people get a better deal than you? Do you think you might be being discriminated against? Then write to our discrimination expert Richard Leong. He's ready and waiting to answer your questions.

He says he can do what he wants

Dear Richard
I hope you can help me. I've been employed doing the same job since 2004. Even after the company was taken over, more than two years ago, I was left to do my job Monday to Friday and every second weekend. Now one of the first line managers, who isn't really anything to do with me, had cut his own men's weekly bonus (£100-£1,000) and every weekend work.

Even when they were getting this I just worked my usual hours. I didn't get any big bonus or when it was my weekend off I wasn't offered to go out to work with these other employees. Now with their money cut, their first line manager has decided that I will be only working one day out of my usual two as he is giving this to his men to stop them moaning. Even though I haven't had any problems in all the years I've done my job, and I have the tickets to carry out this work, when they don't. When I said to this manager 'you can't do this' his reply was 'I can do what I want'. But can he do this?

Richard says:
I am sorry that you are experiencing problems at work. Based on the information you gave me, my understanding is that your employer has reduced your hours without your consent. You are asking whether or not your employer is allowed to do it. I will explain your legal options for dealing with this problem below.

You can lodge a formal written grievance to your employer, in order to complain about the situation you are not happy with at work. See our guide 'Dealing with discrimination at work. How to use the grievance procedure' for more information on raising a grievance.

If that doesn't resolve the situation you could take things further. Assuming that you are an employee and that you have a contract of employment (see 'Contracts of employment' in the links on the right hand side) which lays down your hours, your employer is possibly in breach of contract, in that they changed your hours without your consent. Therefore you may have a potential claim for breach of contract at the county court. There is more information on this in the links on the right hand side. If you want to pursue this action you should get legal advice.

There are also other legal options for dealing with your problem, such as claiming constructive dismissal or classing yourself as redundant. All these options are complicated and carry big risks so it's important to get advice on your individual circumstances. An adviser could talk things through with you and help you decide on the best course of action.

I feel I’m being punished

Dear Richard
I have bone/breast/liver cancer. I have worked for the same company for almost 10 years. I have had three different lots of chemo and worked reduced hours through the last two, and until now work has been very supportive.

However during this last treatment, from which I am now classed as in remission, my manager has changed. I have been informed that my performance for the last six months will be classed as a level 2 (under-performing) even though I was on treatment, working very reduced hours. If had I been signed off for the whole period I would be a level 3 (standard performance) which is what I had expected. So by trying to work through treatment rather than being signed off, when they may have been able to put me on long term disability, I feel I am being punished. Is this grounds for discrimination?

Richard says:
I really admire your bravery and determination in the face of adversity in working through your illness. And it seems that things were fine until your manager changed.

My understanding is that you have got an unexpectedly poor performance appraisal classed as level 2, whilst you were working and undergoing treatment. It appears to me that your medical condition is making it difficult for you to perform at work.

I would like to reassure you that your medical condition amounts to a disability covered by the Disability Discrimination Act 1995. I believe that you may have two possible disability discrimination claims against your employer.

Firstly, your employer failed to make the ‘reasonable adjustments’ he is required to by law, by assessing your performance and failing to take into account your disability. Reasonable adjustments are measures to let you cope at work in spite of your medical condition, such as classing your performance as a level 3, instead of as a level 2, allowing you to work flexibly, changing your duties and so on.

Secondly, you may possibly have been discriminated against for a reason related to your disability. Because your work performance is affected by your disability, your employer should not use it as a reason to give you a poor performance appraisal. This is unlawful.

You may believe that you have only two options: either trying to work whilst undergoing treatment and being penalised, or being signed off and consequently not penalised. I want to make clear that there is a third option. You are entitled by law to work whilst undergoing treatment with reasonable adjustments made by your employer, and without being penalised for your allegedly poor performance due to your illness or treatment.

To sort out the situation you are not happy with, you can lodge a formal grievance to your employer to complain about it (see the Advicenow guide 'Dealing with discrimination at work – how to use the grievance procedure' in the menu on the right hand side). If you’re not happy with the result and you would like to consider bringing a tribunal clam I will be happy to give you further legal advice before issuing proceedings. You can read more about taking a claim to a tribunal in the links on the right hand side.

'The state I'm in'

Dear Richard
I have been with my employer three years in July. I've always had quite a good relationship with my boss and most of the staff. I am entitled to four weeks paid holiday plus bank holiday in my contract of employment, but it has come to my attention that his step daughter who also works for the firm is entitled to five weeks paid holiday. In addition to this she has already booked all of her entitlement plus more which she is being paid for. Could this be unfair treatment or even discrimination?

Also I became pregnant in December of this year. I told my employer as soon as I found out, we discussed what was going to happen, for example with maternity leave, when I would return etc. I then had days off ill due to morning sickness, which obviously I cannot help, but I took this time off as holiday as I was requested to do so. I have also had time off recently due to a fall. I had to go to hospital and have three days off for rest, of which he paid me nothing, not even Statutory Sick Pay. When I gave him my SC2 form he complained about the time I'd been having off, suggesting I was making it up because and quote 'the state I'm in', this meaning being pregnant I assume. He has also been making comments which I feel to be unnecessary about my appearance. Can I act on these problems?

Richard says:
I am sorry to hear about your problems at work. It appears to me they concern your holiday entitlement in comparison to your employer's step daughter, your right to take time off for pregnancy related illness, your right to get sick pay and how to deal with the offensive comments.

Dealing with your first problem, your holiday entitlement complies with the minimum required by the law (4.8 weeks per year). Even though giving more weeks of holidays to relatives than to other employees is highly unfair and is discrimination, I am afraid that it is not unlawful.

Concerning time off for pregnancy related sickness, you are entitled to the same sick pay as you are entitled to when you go on sick leave. Your sick pay depends on whether you are covered by a sick pay scheme laid out in your contract ('contractual sick pay') or you are on a statutory sick pay scheme (the minimum required by law). In both cases you do not have to take time off as holidays when you are sick. Therefore your employer unlawfully asked you to do it. Look at your contract of employment to see whether you are covered by a contractual sick pay scheme, which may mean better terms than the minimum required by the law (statutory sick pay). They cannot be worse terms, otherwise they are unlawful.

In terms of your sick pay, you have a right to be paid at least the statutory sick pay, as long as you are entitled to it. Again you should check in your contract of employment to see if you are entitled to contractual sick pay, which may give you more than your minimum entitlement required by the law. If you've not got a contract you should check by asking other employees what normally happens with sick pay - do people get the minimum or is it more generous? If you are not entitled to contractual sick pay, but just to a statutory sick pay, I am afraid that you are not entitled to sick pay for the first three days of sickness.

As for the offensive comments relating to your pregnancy status and the complaint about you taking time off, they could amount to harassment. Therefore you are entitled to bring a claim of sex discrimination at a tribunal.

Lastly, if there are any situations at work you are not happy with you can lodge a formal grievance to your employer to complain about it.

See the links on the right hand side for more information about sex discrimination, raising a grievance, and taking a claim to a tribunal. If you would like to take action about your situation there are strict deadlines so you should act quickly. You are much more likely to get the result you want if you get help from an adviser. See Get discrimination advice for details of how to find an adviser near you.

Good luck!

July 2008