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Discrimination questions - pay and hours

RichardLeong NewOur discrimination expert, Richard Leong, answers your questions about discrimination in pay and hours at work. Read on to find out what problems other readers have experienced.

'England for the English'

Dear Richard
I am a 27 years old professional female. I have worked for my company for about six years. I started as an junior officer on a very low wage. At the time I was able to accept it as it was my first office job and I didn't feel very confident with English - I am an eastern European migrant.

After a few months I realised that my language is better than I thought, I do really good job and its quality is not any worse than my English colleagues - if not even better. So after some time I started asking about a pay rise as I knew my pay was considerably lower than others. I was only given the minimum rise, which is classed in company policy as cost of living which is given to all employees. They always had some excuse for me like: you are not here long enough to get an increment, not many people got it this year etc. Eventually I was given an extra £600 (about three years ago). It was better than nothing, but still very far from my English colleague, who was performing the same job.

Because I was really struggling financially and I felt really distressed about it I decided to take further action and I put a grievance in. They didn't give me anything near what my colleague was on, but I decided to agree to this small rise as they were making my live very awkward (picking on small mistakes, making a big fuss, and generally being quite unpleasant to me). I felt horrible and I knew it was a fight against windmills and no one would support me if I wanted to complain about it - people at my workplace mind their own business and don't want to get involved in any stuff like that.

A few months later they hired another person in a similar position who had less experience and qualifications but was getting paid almost the same as me. As I was still unhappy about my pay and things were rumbling in my head I decided to honestly speak to a senior manager who is the main person deciding about our pay. I mentioned all my worries and upsets and I said it was not very motivating and I feel like there's no point working that hard if I'm not getting rewarded for it (I was always staying late, meeting my deadlines). The response I got from them was shocking to me - I was told that it's not me who's getting underpaid but someone else is getting overpaid and that I can make as many complains as I want but I would get nowhere and that they were going to work on my performance if don't feel motivated. That quick meeting ended very unpleasantly and the person I spoke to just aimed to frighten me. Afterwards I felt victimised as this person communicated to my line manager and all picking on mistakes and keeping close eye on me started again. I decided to be stronger and somehow I survived it so they drop it after a few months.

Later on I decided to take a different route and I applied for another job within my department. It was a fixed term contract with possibility to become permanent to cover maternity leave. The job is more complex and requires more qualifications and knowledge but it was advertised on the same grade as my previous position. When I took it over I didn't get a penny more, but I wanted to get some new experience. I didn't know what I signed myself up to. This job required so much hard work and commitment that I was almost going mental. I almost gave it up as I wasn't getting such a great support from my line manager. But some circumstances had changed and I decided not to give up again and show them what I was capable of. I worked extremely hard, lots of hours also during my private time (although it was my personal choice I knew if I failed I would get in trouble and all the blame would fall on me). I managed to complete all tasks within the deadline and my management was very pleased with me. My annual review contains words like: well done, key member of staff, etc.

In the meantime my secondment came to an end and the person who I covered for decided not to come back. I was expecting to be offered a permanent position but rather than that it was announced to me that my secondment will be extended. I was very unhappy and upset which I told my line manager. Luckily this time they reconsider and offered me a permanent position (obviously still at the same wage - no miracles!). Again I was given lots of excuses when I raised money again, with strong underline that the permanent position is my reward. I had no choice but to find myself a part time job as I was struggling with my bills.

While I was wondering what to do it was announced that our department is being restructured. When the first draft of the new structure had been announced I was allocated to a position that was not my current job title. So when I had my consultation with HR and the senior manager I asked whether they were going to change my job title. (Personally I think the one that was on the chart reflects my job better). They seemed to be quite keen on it saying ‘yes not a problem’ until I asked if that means they will change the grade too. I mentioned that compared to the market the job I perform is paid a lot less and that the job description does not cover all of my duties. The response I got was that if this position was to be changed it would have to be advertised and I would have to compete with other colleagues whose job might be at risk due to the restructure (some redundancies may happen). My answer was that if it’s the only way to put things right I will have to take that risk.

A few weeks after we had another departmental meeting to show us the corrected structure where my job title has been changed to a completely different one to make it the same as some other people within the department. (I have to mention there are a few people having this title but their job descriptions vary, the only similarity is we are all on the same pay scale - second to the lowest one of course, people's wages wary a bit within it, but not a lot).

After that I had another meeting with HR and the same person as before where I asked why they changed it and the answer to it was that they want to be consistent across the entire department. Deep down I knew it was to punish me for what I raised (this senior manager is the same one I spoke to after my grievance and he’s trying to impress the board very hard). If I stayed quiet my job title would be changed to a better one. I wanted to know if they were going to give me some kind of official letter to inform me about the new job title and changed job description (more staff added to it, but not changed significantly) they said they will do. I was wondering if they give some kind of a notice that if I decided not to sign it, then HR representative informed me that in theory I could refuse to sign it, but I would put myself in a very difficult position as I wouldn’t qualify for any redundancy package. This is because I was matched to a new position and it would be my personal decision not to take it.

I managed to stay calm and I said that I believed the purpose of all those meetings is to express how people feel about the restructure. So I pointed out my thoughts: that the purpose of having different job titles is that people perform different jobs, that my issues are not personal allegations against anyone, but I raised it because I am really struggling financially. That I was loyal to the company and had a chance to leave during the busiest time, what would leave them with no one to do the job, but didn’t do it (I was the only person who had the knowledge to finish the job at the time), that people who were previously performing this job really struggled with it and one person clearly left because she didn’t feel like she was paid enough for it. That I had not been rewarded for my hard work and I feel very disappointed, that I had no other choice but to undertake another part time job.

Silly me, I was naive again, thought it might be looked at least a little bit from my point of view. The response was that it was consulted with my line managers and my role is in the right scale and does not require any additional qualification and it’s not a rule that you get a pay rise when you become permanent and that it’s not the right time and place to complain about it while some of my colleagues might be made redundant. Previously it was communicated to the whole team that all these changes are the result of this senior manager’s idea to make savings, but now he’s pointed to me that in the current economic climate it’s unreasonable to ask for something like that. Other than that the question that was thrown straight in my face was if I declared my other employment? I hadn’t as I didn’t know I have to.

On top all of it it’s probably worth to mention that a few years ago when the above senior manager started, he sat near me and at the beginning he was very chatty and sometimes we were talking about different general issues. Once after he watched a programme about migrants taking benefits we exchanged some thoughts and everything was fine until he mention to me that his mum is a strong national and she believes that England is for English people. He was just getting ready to leave the building when I asked him what he thought about it? He said nothing, just smiled at me and went home.

I am almost certain that the whole situation is somehow linked to my nationality background and probably personal beliefs of my senior manager. It’s almost becoming the rule that eastern Europeans work for less and if you scare them off a bit they will keep quiet. All of it has been going for good few years and I am getting to the point where I get really frustrated, it affects my health (sleeping problems, depression and few others) and I think I need to do something about it.

Sometimes I think the healthiest option is to go somewhere else, but then at the same time I have a strong feeling that I am not being treated right. The problem is I have not much proof and no witnesses and I don’t know if it would be enough if I wanted to take things to an employment tribunal. I can recover some dates about meetings and I have all my timesheets with lots of hours on, records of sent emails during my holidays and my review notes signed by my line manager. I keep records about current dates and the restructure. But other than that I have nothing else.

My other option is to put another grievance in, but I feel sick even when I think about all I will have to go through. Plus our HR position, which in practice does not seek fair treatment of all employees, but acts in company’s best interest (‘I am here to support your line manager against your grievance’). I was also thinking of leaving and then maybe seeking justice in employment tribunal, but I don’t know wherever I can do that if decide not to follow company’s procedure and put grievance in first and if I have any chance of winning as it’s mainly my word against theirs.

Can you advise me on what requirements I need to fulfil to take things to an employment tribunal and what are the dates I need to stick to (I know there are some time strict time scales) and what chances would I have with my evidence please?

Richard says:
As I understand the facts of your case: you are a 27 year old woman from Eastern Europe and have worked for the company for six years. You believe that your English language and work performance is level with your English colleagues. Since your pay was lower than other (English) staff doing the same job, you asked for a pay rise. The pay rise given was minimal.

You then put in a grievance. It seems that the company has reacted to your complaint by criticising your work performance. Later the company hired an (English ?) person with less experience doing the same job but on the same pay as you. Your senior manager said that your pay complaint was pointless and took no action. You later took on a different role but on the same grade and pay as previously, as a fixed term contract, which then became a permanent contract eventually.

After a departmental restructuring, you were allocated a new position with a new job title but on the same grade and pay. You are wondering whether you should accept it, failing which you might lose a redundancy package. There was an incident of racial harassment, where the Senior Manager said that 'England should be for the English'. You are working part time on another job to make ends meet.

You are thinking of resigning and bringing a tribunal claim.

You believe that this history of workplace mistreatment is on the grounds of your nationality, comprising of failure to give you a pay rise, criticising your work performance and changing your job title, amongst others. Your senior manager is stereotyping Eastern Europeans as people prepared to work for less than the going rate.

I shall advise you about your legal rights, what your best and worse options are, and what you should do next.

The law states that you are entitled to be paid what was contractually agreed. Normally there is no contractual right to a pay rise, even though your work performance is good and you have remained on the same pay for years. Hence, any pay rise is purely at the discretion of the company. Of course, suppressing your pay on the grounds of discrimination is unlawful (see below).

The change in job duties is potentially a breach of contract if it is radically different and without your consent. But in a situation of restructuring and redundancies, the company can justify it as an alternative to job losses, even though it means no pay rise. But if you are being targeted because of your nationality, again this might be unlawful discrimination (see below).

The Equality Act prohibits discrimination on the grounds of nationality. The less favourable treatment you have suffered compared with English workers is a form of direct discrimination. The incident of racial harassment is also unlawful. Your grievance seems to have got you nowhere, even though it was the correct thing to do at the time. Your next step is to bring a tribunal claim for race discrimination, naming the company and senior manager as co respondents. You will need to consider this next step very seriously, since you remain an employee of the company, and suing your employer is likely to make matters worse. It is very important that you take expert individual advice on this.

Proving discrimination is always difficult, mainly because employers never admit of discrimination, even to themselves. To prove direct race discrimination on the grounds of nationality, you will need to show that you have been treated less favourably than the English workers - for example that you were paid less than them and doing the same job - and that the employer is unable to provide an innocent, non discriminatory explanation for this treatment (I understand that the company is saying that the downturn in the economy is the explanation). You no doubt believe that the reason for the low pay is because the senior manager is making discriminatory assumptions that East Europeans are prepared to work for less pay.

To prove racial harassment, you need to show that the senior manager’s remarks were unwanted, were on the grounds of your nationality, intentionally or unintentionally violated your dignity and created a hostile working environment, and you were not too sensitive in regarding it has harassment. In my opinion, those remarks ‘England is for the English’ qualifies as racial harassment. Moreover, the senior manager’s remark is evidence of a racist attitude of mind.

There is no need to resign as a pre condition to bringing a tribunal claim; you can remain working and still bring legal proceedings. I would not resign in any event, since it is notoriously difficult to succeed on constructive dismissal claims (a form of unfair dismissal). You will need further advice if you decide on this course of action. 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.

Trying to get rid of me

Dear Richard
I have suffered a major broken leg, ankle and have a knee problem too that may require further surgery due to the extent of the pain. I had been off for seven months due to the surgery and I am now back part time.

I spoke to my manager and explained that the morning shifts are less painful for me as my leg starts to get really painful about 2pm ish, and that on a Sunday I have someone that can come with me to the gym (to help build up the collapsed muscle and Sunday is the only day she can come with me). My manager then preceded to put me in for the late shifts and continued to put me in on Sunday's telling me she has no option as there in nobody else to cover it.

I have agreed to drop my contract from 37.5 hours to 24 or 25 but I overheard her saying to someone that if she continues to give me the later hours then I will leave. She does not want anyone on a contract apart from management as she thinks it's better that everyone is on zero hour contracts. I am not sure what to do here and would appreciate any advice you can give me please.

Richard says:
Your situation is complicated and several issues need addressing.

You may have a disability discrimination claim (see the link on the right hand side) against the company. But you need to prove that you are disabled. The law covers only medical conditions that have lasted at least one year or, if not, are likely to recur in future. If the surgery provides a permanent cure for your legs, ankle and knees, then you are not disabled. But if, even after surgery, you continue to suffer pain and mobility problems, then you are probably disabled. Unless you can prove your disability, you cannot bring a disability claim. You will need a medical report from your doctor or consultant for this purpose, showing whether you are disabled and recommending 'reasonable adjustments'.

If you are disabled, then your employer has a legal duty to make reasonable adjustments to allow you to cope at work. Reasonable adjustments may include: referring you to the company doctor to get a medical report, allowing you to remain on early shifts and not work Sundays, changing your job duties or finding you alternative work, to give you more sedentary duties, allowing you to remain on part time work, etc. You could send you employer a copy of your own medical report, so that they are put on notice that you are disabled and need reasonable adjustments.

The company may be concerned that your previous work absence might be repeated in future, and this might explain your perception of their wish to get rid of you. My advice is not to resign (even though you can claim constructive dismissal for your manager's behaviour). You have an absolute right to keep your job, and your employer should make reasonable adjustments to allow you to remain at the company. If you believe that you are being forced out, you can of course lodge an internal grievance (see our guide on raising a grievance). But a better option would be to have an informal meeting with you employer, showing them your medical report and reminding them about reasonable adjustments, and agreeing working arrangements that suits all parties. It's probably a good idea to get advice about this from an advice agency.

You are presently a part time worker. If the company is trying to phase out part time workers to zero hours contract (but keeping managers on permanent contracts), this could be contrary to your right not to be less favourably treated as a part time worker. You are presently a company employee, but if you are put on a zero contract without consent this could be unfair dismissal or breach of contract. You will need to get further advice on this matter.

In summary, try to sort this situation out informally with your manager, saying that you have medical problems that can be overcome once suitable and temporary working arrangements can be agreed, and reminding them of your rights as a disabled and part time worker. If this informal approach fails, then you should get advice about bringing a formal grievance or tribunal claim for disability discrimination.

A strain on the pension fund

Dear Richard
I work for the local council. Recently they offered voluntary redundancy to the cleansing section. I applied for redundancy. But there were too many applicants: 43 were granted and 11 were refused on the grounds of affordability/service delivery requirements. This was explained as too much of a strain on the pension fund. All those refused were aged between 51 to 59. All applicants under 50 were granted .

Is this discrimination that the only refusals were aged between 51to 59 and mostly had very long service?

Richard says:
This is a classic case of an employer trying to save money, but ending up discriminating against employees. There is no legal duty on the council to make or accept offers of voluntary redundancy, but if they make any such decisions they must not be discriminatory.

The council is refusing applications for voluntary redundancy from employees aged over 51 years old, whereas those under 50 years are being granted. Reading between the lines, it seems that the 'strain on the pension fund' is the principal reason for this difference in treatment. The council fears that the older and longer serving employees will make a greater claim on the pension fund.

Although this criterion applies to all applicants, regardless of age, it is the older employees that are hardest hit by this decision. This is a form of 'indirect' age discrimination that results in older employees being treated less favourably than younger ones. It is nevertheless unlawful and should be challenged.

The council is also 'directly' discriminating against older employees, deliberately treating employees differently based on their age. This is a more blatant form of age discrimination and again should be challenged. The council could try to justify their decision on the grounds of saving money, but a financial motive alone would not be considered a legitimate reason.

If you are a union member, you should ask your union to assist you, particularly as a number of you are affected. You can send an age discrimination questionnaire (see the link on the right hand side) and a formal grievance to the council. Any negotiations about voluntary redundancies with the council should be done collectively with the union, as this will strengthen your position and prevent the council from dividing and ruling between older and younger employees. If all fails, you can bring tribunal proceedings against the council for age discrimination. Get expert advice to help you.

I'm paid less than others

Dear Richard
My employer pays me less than the other staff, doing the same job, with the same sales targets. The only difference is that I work from home and work flexi hours. The reason they have given me for a £3,500 per annum difference, is that they pay a premium salary to those that can set their hours, so that they can forecast staff levels and monitor them against expected sales, based on previous years. Is that enough for discrimination laws not to apply?

Richard says:
As I understand your problem, you are being paid less than other staff, and your employer is justifying the pay difference for business and financial reasons. You all do the same work and the only difference between you and the other staff is your working from home on flexi hours.

There are various discrimination laws that may apply to your situation, depending on your personal circumstances and who are your 'comparators' (other staff in similar circumstances who you compare yourself with to see if you are treated differently. For example, you will need to compare yourself with a male, full time worker not on flexi time, someone who works in sales in a similar position, with similar work experience and qualifications and length of service.

I will outline the different rules which may apply to you below:

  • If you work part time, you should not be treated less favourably than full time workers. On a pro rata basis you should get any pay, bonuses, commission and other fringe benefits that full time workers enjoy. Remember that part time work is different from flexi time work. If the difference in pay of £3,500 cannot be accounted for by the difference in hours, then the employer will have to show that the discrimination is 'justified'. That is, that the difference in pay is to help them achieve a reasonable business aim.
  • If you are working at home on flexi time because of childcare duties, then the difference in pay may be a form of indirect sex discrimination. Your 'comparator' is a man employed at the office working normal hours. Working mothers looking after young children at home should not be disadvantaged. This could be sex discrimination unless the employer can justify the difference in treatment.
  • If you are being paid less than a man solely because you are a woman, both doing the same work, then this is straightforward discrimination on the grounds of sex, covered by the Equal Pay Act. Again, the employer can justify this difference in pay.

Your company is attempting to justify the difference in pay by saying that only by having set work hours can they forecast and monitor sales. Having set hours is something that acts to your disadvantage as woman working on part time or flexi time. This can be indirectly discriminatory. The company can justify this policy only if there is no alternative to facilitating forecasting or monitoring other than this means. If you can think of an alternative that would be less discriminatory, let the company know. For example, if your flexi time work hours are predictable or can be regularised, then the difference in pay cannot be justified.

I would advise you to file a grievance about the difference in pay (you should mention your comparators and their pay) - see Dealing with discrimination at work – how to use the grievance procedure.

You could also lodge a discrimination 'questionnaire' to your employer. This is to help you gather evidence to show that you are being discriminated against. In your questionnaire you could ask questions such as: what is the reason for the difference in pay? What is the gender breakdown of the sales force? Is there an equal opportunities policy in place?

The company has eight weeks to reply to the questionnaire with adequate answers. It can be worth doing the questionnaire, since it puts pressure on the company to provide truthful answers. You can also ask for documents like the equal opportunities policy.

If you end up having to take your case as far as a tribunal (a type of court dealing with employment law problems) you can use the replies to the questionnaire as evidence. If your employer fails to give you adequate answers to your questionnaire within eight weeks the tribunal can infer that discrimination has taken place.

Before you do anything get advice from a local advice agency on your specific circumstances. They can talk through the different steps with you and help you decide what to do next. If you do want to file a grievance or lodge a questionnaire they may also be able to advise you what to put in it, to get the best results.

I can't leave because I need the money

Dear Richard
I work in a taxi base in England. I used to do the cleaning which gave me extra money but when we moved premises they said I wouldn't be able to do it any more as it would be too much. They gave the cleaning job to a family member. I accepted this but am finding it really hard to manage with the credit crunch and taking a £20 a week cut in my pay. I am capable of doing the cleaning by the way.

Today I asked if I could have some weekend work when they need it (which they do regularly) and I was just told 'I don't think so Jane'. They drove another employee out with the same attitude and I now feel they have transferred to me. The boss hasn't spoken civilly to me for almost a year and if I try to speak to her she just looks at me as if I was something she had trodden in. Perhaps the way they treat me is something to do with my age, but I'm not totally sure, although the other woman they used to treat the same is 60 so maybe it is to do with my age. All I know for sure is that they treat me like a leper. It is an awful atmosphere and it is starting to make me ill.

I can't leave because I need the money and I am 56, so not much on the job front for me. I would really appreciate any advice you could give me as I feel they are trying to make me leave thus making a case of constructive dismissal maybe?

I have worked there for six years and have never really been treated fairly but things are much worse now.

Richard says:
You're wondering if your treatment at work has something to do with your age. Have you consider that this treatment might be related to your gender also?

Anyway, the law protects workers of all ages against harassment and unequal treatment at work on the grounds of their age. You might consider contacting this other woman worker, to compare your experiences with hers, to see if there is a pattern of behaviour which might confirm your suspicions.

I am afraid that small employers are sometimes ignorant of their legal obligations and employees rights, or do not have the resources to have proper policies and procedures in place.

My advice is to file a grievance about your treatment. You can read more about this in our guide: grievance procedure. The company should investigate your grievance, arrange a meeting and take appropriate action to resolve your complaint. Get some advice from an advice agency to help you file a grievance and deal with your employer's response.

It is likely that the cleaning job was given to a family member to save money; but this does not make it lawful.

Yes, I am afraid that it is a practice of unscrupulous employers to try to harass employees they consider undesirable to resign and leave. This is known as constructive dismissal (see the links on the right hand side for more information). If you think this is what your boss is trying to do get advice on your options.

What your employer cannot do is to make you retire, since you are under the statutory retirement age of 65 years (although your pension might start earlier). You can read more about age discrimination, including around retirement, in the links on the right hand side.

You are understandably in a very difficult situation in that your employer seems to want you to leave; but you have no job to go to. Get some advice on your options including filing a grievance to see if this helps. If not, you could bring an age discrimination claim at a tribunal; but I suspect that this might make things worse at work. Another option is to contact ACAS for mediation (it is a free service) (see the link on the right hand side). I am sorry that I cannot be more helpful.

He makes me upset every day

Dear Richard
My boss did not give me a wage slip for the month of July and the month of August. He stopped me a lot more money than I think he should have. I have asked for my wage slips. He said at first he didn't have to give me any because they cost too much. When I said this wasn't right he said he was only joking and that he is waiting to get then back from his accountant. So how did he know how much to deduct?

Treated worse than others I am pregnant and leaving soon as he has treated me badly, calling me names and when I was off sick recently with a doctors note for nine days he said he only had to pay me for the first three days.

I have been in this job for over a year but my boss sold the shop to this guy but its continuous employment and I have a letter to prove this. So I believe I am entitled to my maternity pay. I have been working for this guy since March and will be leaving at the end of September. My baby is due 2nd December.

I am trying to do everything right and get it all sorted before I leave but this guy is a bully and makes me upset every day. He said I am not entitled to any holiday money because the shop didn't open on time when he had it done up and he had to pay us 2 weeks wages so that's our holiday pay. There is nothing in writing and I haven't signed anything. Please help.

Richard says:
You seem to have an entire list of problems at work! The reason for all these difficulties stems from the fact that your employer has not given you an employment contract. You should have been given this employment contract within two months of starting work. The employment contract would have given you details of pay, deductions, sickness, holiday, maternity rights, disciplinary and grievance, period of continuous employment and termination of employment. Your dispute with the shop could have been avoided if there were something in writing.

I will give you advice about your legal rights on each of your employment problems, one at a time:

Deductions: your employer can lawfully make deductions only if you agreed them in writing, usually in the employment contract. And even then, your employer can deduct a maximum of 10% of your wages (once you leave, the shop can however deduct the full amount). I presume that these deductions are for cash, till or stock shortages. Check that these shortages actually exist.

Pay slips: you have an absolute right to an itemised wage slip, detailing your wage (gross and net), deductions, tax, NI, date of payment and method of payment (for example cheque or cash). You should check with Her Majesty's Revenue and Customs that your employer has paid your tax and national insurance to them.

Sick pay: since you do not have an employment contract, I assume that you are not entitled to contractual sick pay. But you may be eligible for SSP (statutory sick pay), depending on your earnings (earning more than £90 per week). You can start receiving SSP from the fourth day of sickness. The current rate of SSP is £75.40 per week. Your employer should pay you SSP, if you are entitled.

Name calling: this could be sexual harassment if the name calling is done because you are a woman, so names that refer to the fact that you are pregnant would be covered by this. The law protects women from such bullying at work. If you believe that all the other treatment you suffered (for example, sick pay) was because of your sex, this is unlawful sex discrimination. For more information see our guide 'Is that fair?'.

Maternity leave and pay: you are entitled to statutory maternity leave, up to one year. But you will need to inform your employer that you are pregnant, when the baby is due and when you intend to start maternity leave. You are also entitled to statutory maternity pay if you earn at least £90 per week. You can receive maternity pay of up to £117.18 per week to a maximum period of 39 weeks. Again, you need to notify your employer about this beforehand. You also have the right to return to work at the same job, after your maternity leave. But inform you employer when you intend to return to work. For more information on this see our guide 'Working parents (or parents to be)'.

Holiday pay: the fact that the shop was not ready to open is an unlawful reason for not paying your holiday pay. Full time workers are entitled to 4.8 weeks holiday pay. The holiday pay is your normal daily wage.

Continuous employment: it is important to preserve your continuity of employment, since you need one year’s service to claim unfair dismissal. The transfer of the shop to new owners should not disrupt this continuity of service. Indeed, all your employment rights and your employer’s duties towards you should be transferred unaffected.

It appears that your employer is totally ignorant of your legal rights as a worker and his legal duties as an employer. There is simply no excuse for this, since there is plenty of information about employment rights out there. You can certainly sue your employer for all the breaches of your employment rights at tribunal. But before you do this, it might be best to put in a written complaint to your employer (raise a grievance). You can read more about raising a grievance in our guide 'Dealing with discrimination at work. How to use the grievance procedure'. If you are treated worse ('victimised') for doing this, for instance, if you are sacked, you can bring this matter to the tribunal too.

Your employer is breaching lots of your rights so you've got a lot to think about. Get advice from an adviser or solicitor to help you. There are time limits for raising a grievance and putting in a tribunal claim (usually three months from when the incident happened) so you should act quickly. I wish you luck.

I am scared for my job

Dear Richard
I am constantly treated differently by my manager at work compared to how he treats several other members of staff.

My boss has a number of workers that are his favourite workers. I have not had a pay rise for two years. I never get overtime work and it is not shared out equally to the other workers who do. I start my job at different times in the morning to other members of staff so the workers he chooses to start earlier get paid double pay and earn more money. I have not been on one training course in two years and several members of staff that have been at my company for less time than I have are always going on training courses. I have had one written warning from my boss which I feel I got penalised unfairly and he made up stories in the follow up letter.

I feel my boss is trying to lay me off work for no apparent reason. I had a meeting with him today and recorded the whole conversation and feel he is trying to sack me. He even stated that he doesn't think my paper exam certificates from college are real when they are. I don't know what to do. I am scared for my job and I need some advice as I have a mortgage to pay and can not risk losing my job.

Richard says:
I am sorry to hear that your boss is treating you less favourably than other staff. I understand that you have problems relating to pay, overtime, training, and starting times. You have also been subjected to disciplinary action and feel at risk of losing your job. I don't know what your job is or what other staff do, but. I am assuming that all your jobs are similar.

You may have been subjected to discrimination if the difference of treatment is because of your race, sex, disability, sexual orientation, religion or age. A great deal depends with whom you are comparing yourself, and whether there is a difference in race, sex etc...between you and them. For more information on what counts as discrimination see the guide on the right hand side, 'Is that fair?'

If what is happening to you doesn't count as discrimination in this way, then your treatment is probably due to other unfair or unreasonable treatment by your boss. In any event, your remedy is to file a grievance at work (make an official complaint). Have a look at your company's grievance policy. Once you have raised a grievance your employer has to investigate your complaint and take reasonable steps to put a stop to any unfair treatment. You can also get help from your trades union, if you have one. You can read more about making a complaint in the guide, 'Dealing with discrimination at work - how to use the grievance procedure).

If all else fails, you might consider suing your employer at a tribunal - but this should be a last resort, after you have exhausted all internal channels. There are time limits to bringing tribunal claims. Check your company's disciplinary policy, to see how long the written warning remains 'live' before it is spent. But your boss should not penalise you in addition to the written warning, by not giving you a pay rise, training etc.

I fully appreciate your fear of being dismissed, particularly if you do decide to file a grievance against your boss. I am afraid that there is no easy answer to your present predicament. The law cannot sort things out at your workplace, but can only react after your legal rights have been violated. I suggest you do things in stages, start by getting some individual advice on your circumstances and consider raising a grievance. If you are sacked unfairly there are laws to protect you. Again, an adviser can help you with this. Good luck

We get less holiday

Dear Richard
I and a large number of women work for a local authority and it has come to our attention that all the staff in the offices (we work in catering) are given two weeks holiday more than us, even new starters get this entitlement. Is this legal?

Richard says:
I am assuming that the majority of the catering staff are women, and that most of the people working in the office are men.

The amount of annual leave you are entitled to is usually agreed in your employment contract. I am assuming that the council has given you the statutory minimum of 4.3 weeks of paid holidays per year. It is however unlawful to give men more annual leave than women under the Equal Pay Act, if they both are doing essentially the same job.

I notice that you are comparing canteen workers (mostly women) with office workers (mostly men). If this comparison is valid, then it is unlawful to give women less annual leave than men, unless the local authority can point to some justification, like, for example, the office workers work longer hours than canteen workers. Equal pay claims are very complex, expensive and time consuming. So if you want to think about taking action on this you should get legal advice from your trades union (if you are a member), since collective grievances like yours are something that they should deal with.

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.

'The state I'm in'

Pregnant woman
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.

We feel discriminated against

Dear Richard
Can you please advise me. I work as a relief worker for a county council. In my contract it states that I would be asked to work when there is a shortage of permanent staff. My colleagues and myself have now been told by the management that it is her wish to phase us out and to replace us with outside agencies (we are only offered shifts that the agency can't cover). Some of us relief workers have been in this same job for quite a few years and are now made to feel, for the want of a better word worthless! The said manager has not given anything in writing and has told us that is what she wants, (end of conversation). Finally as you must appreciate this is causing severe financial hardship, we the loyal 'as and when worker' (this is the new name she has given us) feel totally discriminated against.

Richard says:
I’m sorry to hear about the position you’re in. From what you’ve said, it sounds like you are contracted to work for the council as and when needed. But you are needed less and less because the council are giving the work instead to an outside agency. And you have been told that, in the long term, they want to get rid of you completely. So, I’m assuming you want to know whether they can treat you like this.

So, can they give you less and less work? This depends entirely on what it says in your contract. It might say that the council are obliged to give you a certain minimum amount of work, or a minimum amount of pay or it might not. If you’re not sure what your rights are under the contract, take it along to an employment adviser at your nearest CAB, law centre or local advice agency and they’ll be able to look at it for you.

Can they get rid of you all together? Again, this question depends on what your rights and obligations and the council’s rights and obligations are under your contract. Getting rid of you and using agency workers to do your work instead, could be unfair dismissal. But only employees who have worked for their employer for a year continuously are protected from unfair dismissal. So it’s important to work out whether or not you can be classed as an employee with one year’s continuous service. Even though you only work as and when needed and even if your contract says that you are not an employee, there is still a slim chance that you could be depending on the details of your situation and what your contract says. I’d really recommend that you talk to an employment law solicitor about this. If you have a law centre nearby, you might be able to get advice for free. If not, whilst you do have to pay for private solicitors, you can usually get an initial meeting for free. Tell your adviser that you think there was a case about this point very recently.

If they get rid of you without following any procedure required by your contract (such as giving you a certain amount of notice), you could threaten to take them to court for wrongful dismissal. But you won’t get much compensation for this – just the wages you would have got had they given you the right amount of notice.

I was told that everyone gets the same

Dear Richard
I have been working in a private company for five years and I have been treated unfairly with my payment for the past five years.

Whenever I asked, I was told everyone gets the same, only after five year I found out that no one gets as low as me.(not even the new employees). There is a big difference between the payment and I also very experience at my job. Is this discrimination or exploitation? Please advice me what to do and how to deal with it.

Richard says:
Unfortunately, it is up to employers to decide how much they are going to pay their staff. But there are some legal rules employers have to follow.

  • Your employer has to pay you at least the minimum wage, which is currently £5.52 for workers aged 22 or over. If you find that you have been paid below this minimum wage, you can bring a claim to the employment tribunal,regardless of whether you have agreed with your employer to work for less.
  • Your employer has to pay you what they have contractually agreed to pay you. If your employer has underpaid you (paid you less than you are entitled to under your contract) you can sue them for unpaid wages at an employment tribunal (but you may be out of time to bring a claim for most of the wages owed). You can also claim for breach of contract at the county court (the time limit is six years). To prove your case, you will need to show what the agreed payment was, what you were actually paid, and that you were never paid the difference. This is fairly straightforward to show with documents, like wage slips and P60 and the employment contract.

When it comes to discrimination and pay it is against the law for employers to discriminate against employees for a number of reasons (for example, because someone: is a woman, is married or in a civil partnership, is pregnant, is taking or wants to take statutory maternity leave, is transgender, is of a certain race, colour, nationality or ethnic or national origin, is disabled, is too old or too young, is lesbian, gay, straight or bisexual, is a particular religion, is a part-time or fixed term worker). Paying someone less than other people because they fall into any of these categories is discrimination.

Do you suspect your employer might be paying you less for any of these reasons? For example, are most of the people being paid more than you men even though they are at a similar level to you in the organisation? Or are you much younger or much older than the other employees?

If you think your employer might be discriminating against you for any of these reasons, go and talk to an employment adviser at your local advice agency. You can talk to them in detail about your experiences at work and they will be able to tell you whether they think your employer is discriminating against you.

Can I claim sex discrimination?

Dear Richard
If I am refused a job share, and I go to tribunal, may I claim that it is indirect sex discrimination?

Would that still be possible as my joint job share applicant is male?

Richard says:
The law gives you a right to ask your employer if you can work flexibly, such as by doing a job share. Your employer has to consider your request but does not have to accept it.

But if your employer does turn down your request, you are right in thinking that you might be able to claim that this is indirect sex discrimination. This is because more women than men have caring responsibilities and therefore more women than men need to be able to work flexibly. If your employer refuses your job share application, you could argue that this decision puts you and other women at more of a disadvantage than men. It makes no difference to this argument that the person you are applying to do the job share with is a man.

However, your employer might be able to justify its decision if there was a real business need for turning down your request. So I would recommend that you speak to an employment law adviser about your situation before you take any action. If you're not sure where your nearest advice agency is see: Get discrimination advice.

Of course if your request is turned down and the request of the man with whom you are applying is accepted, you might be able to claim direct sex discrimination.

Why can't we get back pay?

Dear Richard
I work for a county council. Last year thousands of council workers were paid back pay after a job evaluation was done right across the board. I was informed by my manager that I was entitled to back pay as well, as at the time I was working as a relief worker (I am now on a contract). Since he told me that, things seemed to have changed. Payroll now say that all relief staff won’t get anything because of the difficulties in tracking our hours. But this can’t be right because it is all on our individual pay records of the amount of hours and pay that we get. I feel that this needs to be looked into so I am still pursuing this to this day. I feel this is discriminating against relief workers.

Richard says:
I’m sorry to hear about your problem. If I have understood you correctly, the wages for the job you were doing as a 'relief worker' (and now 'on a contract') for the council were increased after the council did a job evaluation. But whilst workers 'on a contract' were paid back pay,'relief workers' weren't.

First of all, it’s worth getting advice to find out whether you might have a claim under equal pay laws. If you’re a member of a union I’d talk to your union rep about this, because the union is likely to have been consulted by the council about the arrangements for the job evaluation. If you’re not a member of the union, you could think about joining it.

Secondly, the law not only protects people from being treated less favourably on the grounds of sex, race, disability, age, religious belief and sexuality but also protects:

  • part-time workers from being treated less favourably than comparable full-time workers
  • fixed-term workers from being treated less favourably than comparable permanent workers.

You could get advice from someone who specialises in employment law at your local CAB, law centre or independent advice agency about whether, as a ‘relief worker’ you fell into either of these categories. If you’re not sure where your nearest advice agency is see Get discrimination advice. You could also ask them whether you might have a right to the back pay for other reasons (for example, as an unpaid wages claim). But be aware that, if you want to bring a claim, there are strict time limits (usually three months for claims you have to bring in employment tribunals, but six years for breach of contract claims you have to bring in the County Court (Sheriff’s Court in Scotland)). So, if this issue has been going on since last year, you might be out of time to bring a claim in an employment tribunal.

Why can't I work flexible hours?

Flexible Working
Dear Richard
I want to change my hours so that instead of working five days a week, I work a nine day fortnight, working longer hours on the days I am in. I asked my manager and she said that that kind of thing comes under the firm's flexible hours policy, but that because I don't have children they won't let me to work flexible hours. That doesn't seem fair to me - aren't they discriminating against me just because I don't have kids?

Richard says:
Unfortunately, there is no law against treating employees without children less well than employees with children. There is, however, legislation that gives employees the right to work flexible hours, but this right applies only to employees with children or dependent adults (See the link on the right hand side for more information). I am afraid that you are committed to working the hours stated in your employment contract, something your employer can insist upon.

I understand that your employer has a flexible working hours policy. This is supposed to balance the employer’s business needs with the employee's right to work flexibly. You might try using the policy to persuade your employer to make an exception in your case, mentioning the extra work you're prepared to do and the minimal inconvenience your new working hours would cause to the business. Much will depend on the nature of your job, your seniority and whether cover at work is available. At the end of the day, it really is up to your employer’s discretion.

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.

September 2010

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