Discrimination questions - pay and hours

Our 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. Or send Richard your own question by filling in the comment form at the bottom of the page.

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'

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.

Where do I stand after fall?

Dear Richard
A year ago I was involved in an accident whilst at work through no fault of my own. As I do not like to take time off work the company doctor advised my employer that I would only be allowed to work restricted hours and very light duties due to my shoulder being badly damaged. The recovery period would be twelve to eighteen months but would never be 100 per cent - at best 80 per cent.

My company has been paying me a full salary for the last year. Last Thursday I was called to see the works doctor who advised my manager that they would not be increasing my hours at work. On the Friday I was called by HR and told that they would be cutting my salary by half until I return to work full time.

I find this most unfair as the company has a duty of care towards me and have been paying me a full salary for a year. I am in this predicament due to persons unknown causing me to have a very severe fall. Where do I stand? Is this a case for disability discrimination?

Richard says:
I am sorry to hear about your accident at work. If it was caused by your employer's negligence, you might be able to claim compensation from your employer for the reduction in your wages and any other money you have lost or had to pay out as a result of the accident. You will need to get advice on this from a personal injury lawyer. You can search for a lawyer on the Association of Personal Injury Lawyers website. The time limit for bringing a personal injury claim is three years from the date of the accident.

Because your accident has caused you to have a long-term physical impairment (a problem with your shoulder) you are almost certainly protected by disability discrimination laws. This means your employer has a duty to get medical advice about your condition and make reasonable adjustments to help you work effectively. By getting medical advice from the company doctor and, as a result of that advice, reducing your hours and duties, your employer has probably fulfilled these obligations. But if you disagree with the company doctor's recommendations, you can get your own medical report from your own doctor.

Still, there are a number of things you might be able to do about your reduced pay. If you are a member of a trade union, get some advice from your rep on these:

• Look at your employment contract to check your sick pay
  entitlements.
• Check any information about staff entitlements to see whether
  you are covered by any insurance purchased by your employer.
• Ask your HR department if the reduction in salary can be phased
  in gradually over a number of months to help you get used to being on less pay. If you decide to go for this option, you could also find out whether you can get any incapacity benefit to supplement your income and look into any payment protection insurance you might have (for example, for your mortgage) if you are struggling with your regular outgoings.
• Find out if you are entitled to medical retirement, something that applies to employees who are permanently unfit to work.

Good luck.

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?

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.

May 2008