Discrimination questions - respect and dignity

Our discrimination expert, Richard Leong, answers your questions about bullying and harassment at work. Read on to find out what problems other readers have experienced.

He has turned on me now

Dear Richard
I work in a small office - seven of us. Some four years ago we got a new director who has since started bullying certain members of staff. Specifically the older members of staff - particularly the females, verbally and due to volume of work ,making life hell. So far two women have walked out and two gentlemen have had their hours cut.

He has turned on me now - I am a 50 year old female with Parkinson's - I end up crying every day. My director applied to my doctor for her opinion as to whether I was fit to work and she replied to 'their evil letter' saying that I was ok. They are now giving me so much work and as I am unable to complete it, say that they are going to dismiss me as 'I am unable to do my job'.

Please help - what should I do?

Richard says:
Your work situation looks very much like one in which a new boss wants to eventually replace the existing staff with a new one, replacing older workers with younger ones, women with men and disabled workers with non disabled ones. His strategy relies on bullying and harassment, overworking existing employees, or dismissing them for failing to complete impossible tasks.

You are now being targeted. He is possibly setting you up to fail and then dismissing you on the grounds of capability, or even relying on you suffering so much that you leave for health reasons. Your new director and situation at work sound like a nightmare. The current recession is making workers more vulnerable to unfair treatment at work, many of whom just simply tolerate it to safeguard their jobs.

But I can assure you that you have legal rights at work that protect you against mistreatment, particularly on the grounds of discrimination based on your age, sex and disability. The first thing you could do is to file a grievance against this director for discriminatory bullying and harassment and for being overworked. (See our Dealing with discrimination at work – how to use the grievance procedure for more information.) Your employer should give you support and take your complaint seriously.

Unfortunately, the risk is that if you file a grievance you may be treated even worse for complaining about the discrimination (the legal term for this is 'victimisation'). If the situation becomes intolerable, you might consider going on authorised sick leave due to stress.

I would advise you to get a medical report (from your doctor or consultant), confirming that you are suffering from Parkinson's, and that 'reasonable adjustments' should be made. Your employer has a legal duty to make reasonable adjustments to your working conditions so that you can cope at work, the most obvious of which is to reduce the amount of work given to you. If you find yourself dismissed, your remedy is to file a tribunal claim for unfair dismissal and discrimination on the grounds of age, sex and disability - see the links on the right hand side.

Sadly, employment legislation and the courts do not have the power to sort out problems at work, but are able only to 'react' to breaches of employment rights. You might want to consider using the services of ACAS to mediate a solution that would involve a termination package, for example, compensation and a job reference. I must advise you strongly against resigning from your job, except as part of an exit package.

It's very important that you get more advice on the different options you have available to you - see our Get discrimination advice pages. There are time limits for things like filing a grievance and taking a case to tribunal so it's a good idea to act quickly. Good luck and you have my sympathies.

I want to leave as soon as I can

Dear Richard
I am currently suffering discrimination at work. I have had several racist comments made to me by the same person. I am also being isolated because my manager wants me to learn how to do sales and it has upset some of the other members of staff in sales. Guess who I get the racist comments from - the Sales Manager. She gets into little cliques - it's bullying.

I just want to leave this job as soon as I can. I hate being here.

Richard says:
My first piece of advice is that you should not resign, since this is probably what they want you to do. If life is unbearable at work and it is making you ill, take sick leave (so long as you are covered by sick notes).

In the long term, if you cannot work there and the company does not want you there, you might consider a termination package whereby you agree with them to leave your employment, in return for financial compensation and an agreed job reference. But you will need expert advice before taking such a drastic step.

But if you think that things can be sorted out at work, you might consider asking for a transfer, if that is an option. You should certainly think about filing a grievance about the harassment (see our guide on using the grievance procedure). Keep a diary of incidents and make sure all communications are in writing.

Your options really depend on whether there is any hope of continuing work at the company. It is an unfortunate fact of life that it is usually the victim that feels that they have to leave. A good employer should take your grievance seriously and suspend the perpetrator, pending the investigation and take appropriate disciplinary action if your complaint is upheld.

Sadly, in such situations of conflict at work, management tends to close ranks and this is why you are feeling isolated. The important thing to remember is that you haven't done anything wrong and you do have employment rights. You should seek further advice from legal advisers. Racial discrimination and bullying is unlawful and you have the legal right sue at tribunal. (See the links on the right hand side for more information on this.)

Not from around here

Dear Richard
I am from Wales but currently work in North East England. It turns out that people at work have been spreading rumours about me talking about the boss. My boss pulled me up on this and reminded me that it is important to remember that 'you're not from round here, so you will never really fit in'. Prior to this one of the stirrers (at least I think - so I have said nothing) accused me of harassment which was proven unfounded.

I'm not sure of the reasons behind it all, but I do wonder if it is because I'm Welsh. Every year the staff team have what we call a 'secret Santa'. My present this year was a blow up sheep with handcuffs which was implying things. I have had my work pulled apart and written all over with highlighter pen by senior staff and then left on display for all to see whilst I have been on my days off. I consider that to be unprofessional and unfair. And I do have the occasional comment about being Welsh or coming from Wales.

Or maybe it's just that my face doesn't fit - the company that I work with will find one reason or another to get rid of someone if that's what they want and they have done so with a few employees in the past.

I now hate the job that I have always loved because some people either just ignore me or try to make my life awful.

All this is having an effect on my health. I am not sleeping too well and feel depressed. Can you suggest how to deal with this?

Richard says:
I am sorry to hear about your situation at work and your associated health problems. There is no doubt that you have been subject to bullying and harassment, but the question is why are they doing it?

You suspect that it might be because you are from Wales and 'do not fit in' in the North East of England. Your suspicions are fuelled by the 'secret Santa' present and unpleasant comments about coming from Wales. Your work has also been criticised in public by managers.

The legal test is how non Welsh staff are being treated. If only you are being treated in that way, then this is evidence that your Welsh origin may be the reason; if not, then it looks like generalised, non discriminatory bullying against everyone.

However, the blow up sheep looks Welsh specific; but is it discrimination or a joke in poor taste? Ask yourself: what did other people get for presents? What did you get in the past? Do you have a Welsh accent or speak in Welsh?

The Race Relation Act provides protection against discrimination on the grounds of race, colour, national or ethnic origin and nationality. The category that may cover you is 'national origin' in that in the past Wales and England had been separate places, which were eventually conjoined as a single territorial unit. Hence, your 'national origin' is Welsh (although your 'nationality' is British).

Unfortunately, the law is unclear about whether a race discrimination claim can be made under 'national origin' for Welsh people - it is not obviously discrimination on the grounds of race.

Your present predicament can be addressed by making a complaint using the company's grievance procedure. See our guide Dealing with discrimination: How to use the grievance procedure. Your complaint should be investigated, and if it is accepted appropriate action should be taken. If it is not accepted then you have the right to appeal. If the grievance gets you nowhere or the treatment worsens, then your next step is to start tribunal proceedings - see the link on the right hand side.

But before you take any action it is worth trying to get expert advice on your options, especially, on the possibility of a tribunal claim. See our Get advice! page for agencies that might be able to help. Employer's tend to use the 'face doesn't fit' excuse as a justification to harass workers out of their job - this is unacceptable, regardless of whether any discrimination is involved. Your rights at work however are immeasurably increased if you can show that this treatment was racially motivated. I hope that this helps.

The jokes are getting worse

Dear Richard
I am writing this email to ask for your kind advice about gay discrimination in the workplace.

I am gay but not coming out to my colleagues at all. However some colleagues seem to know and try to make jokes and derogatory comments on gay issues in the office, sometimes with my pictures for a laugh. These totally make me very uncomfortable and disappointed in my job. It seems to be getting worse now.

As a professional organisation, I am wondering if you could provide some advice on this situation, and how to react to this discrimination.

Richard says:
I am sorry to hear about your unpleasant experiences at work. You have an absolute right not to be bullied at work because of your sexuality (or what people think your sexuality is).

The law says that, discriminatory harassment and bullying at work can be either carried out on purpose to violate someone's dignity at work. It is still illegal even the people doing it didn't do it on purpose so long as its effect is to create a hostile and intimidating working environment. The behaviour must be homophobic in nature, unwanted by the victim and would offend a reasonable person in the same circumstances.

Judging by what you tell us, I would say that you have been subjected to discriminatory harassment and bullying at work, as recognised by the law.

Your employer should have an equal opportunities policy and equalities training in place to inform staff what is acceptable conduct at work. There should also be a disciplinary policy that specifically mentions discriminatory harassment as a form of gross misconduct that could lead to dismissal. Find out if the company has a grievance procedure that you could use to complain about this behaviour.

Your complaint should be dealt with sensitively and in confidence. Your complaint should be firstly an informal one, asking a manager to have a word with them to stop this behaviour. Quite often, a quiet word is effective. If this fails, then you need to use the formal grievance procedure.

If after complaining, there is no progress or you are treated worse because you complained (victimised), your next step would be to complain to an employment tribunal of discrimination, contrary to sexual orientation regulations, which protect workers from homophobic harassment and bullying. You will need to think carefully and get legal advice before taking this step. There are time limits however in bringing a tribunal claim so get advice quickly to help you consider your options.

The charity Stonewall also provides confidential support to gay and lesbian workers - see the link on the right hand side.

The bullies were left in post

Dear Richard
In 2006 after a couple of years of putting up with bullies I made a complaint. I was removed from my post and moved around from place to place. I eventually went sick with depression. My complaint was upheld in December 2006 but the bullies were left in post and I was again moved around. In June 2007 I was threatened with dismissal, this was retracted the next day and again I was just moved around where-ever there was a vacancy. Since January 2008 I have been suspended (on full pay). Can you offer any advice please?

Richard says:
This is one of those difficult situations at work where your treatment is certainly unfair and unreasonable; but the question is whether it is also discriminatory in the legal sense.

If the bullying and moving around was on the grounds of race, sex, disability, religion, sexuality or age, your employment rights and protection are enhanced immeasurably. You can, for instance, take your employer to tribunal, whilst remaining in employment. See the link on the right hand side for more information on tribunals.

If the treatment is not legally classed as discrimination, your options are more limited. After upholding your grievance, your employer should have disciplined the 'bullies', instead of dealing with the problem by moving the victim - yourself. This is symptomatic of weak management. The threat of dismissal and your suspension indicates that management sees you as the source of the problem and is trying to harass you from your job as a permanent solution. If you believe that the trust and confidence in your working relationship has completely broken down, you may have no choice but to take the company to tribunal. You should name the bullies in the tribunal claim. If the bullying caused your depression, you may have a personal injury claim. See the links on the right hand side for information on personal injury.

I appreciate that you are in a very difficult position, but your legal options really depend on whether you had been discriminated against. It's important that you get some advice from an advice agency or solicitor to help you decide what to do and take things forward. I hope that this helps.

Will they sack me?

Dear Richard
I have a problem and don't know what to do. Let me tell you the situation. I have worked for a firm for the last two years. Over the last few months I started sending letters of sexual nature to a woman at work. She would reply the same way. We had a kiss outside work. Now the company is taking action against me. They told me it is not a complaint but fact findings. They showed me the notes I had written to the woman. I answered all the questions honestly. I don't know what will happen next. Please, please advise me what should I do? Will they sack me? I am so worried.

Richard says:
Please be assured that sexual harassment can happen only if the conduct is unwanted. It appears from your description that your relationship with this woman was purely consensual from both sides. I understand that there has been no complaint from this woman against you.

Management is investigating this matter because they had found what they perceive to be incriminating evidence of harassment (for more information on sexual harassment see the links on the right hand side). Employers have a duty to ensure that action is taken if there is evidence of harassment. There is actually no need for a complaint from the victim, since many victims do not complain of harassment but simply endure the treatment.

I anticipate that management will interview this woman and will establish that your relationship was purely consensual and that there has been no harassment. This should be the end of the matter. It is not misconduct to have a relationship with a work colleague, so long as it does not breach the disciplinary policy on misconduct.

The fact that you sent letters to this woman of a 'sexual nature' may be construed to be an act of misconduct (possibly, gross misconduct, which is an offence that you can be dismissed for); and this is regardless of whether the relationship was consensual.

Check that the woman has been subjected to the same investigation and disciplinary procedure as yourself. If she too had sent letters to you of a similar nature, and she is not disciplined, you may possibly have a sex discrimination claim. Depending on the nature of the contents of your letters, whether the letters were sent using company equipment, and the method by which your employer got hold of these letters, you may have a breach of privacy claim. But you will need expert advice about this matter. I appreciate that you are very worried about your job. If you believe that you have been unfairly treated, you could consider filing a grievance (see the information on the right hand side). I hope that this helps.

Can they do this?

Dear Richard
I have worked for the same large company for 20 years. I have been a supervisor for at least eight. Since returning to work from maternity leave four years ago (part time when I returned) I have been moved from department to department. I was assured I was still a supervisor when we moved to our new premises five months ago, now someone else is doing my job as I am only part time and they need a full time supervisor.

They have moved me around that many times and made me very depressed that I have decided to take redundancy. But I feel that they have just used me for all their problem solving jobs and didn't even have the decency to tell me my job had been given to someone else - I found that out off the person who got my job.

Can they do this? I feel they have been discriminating against me for the past four years because I have small children and can't work full time, even though I work as many extra hours as I can.

Richard says:
I'm sorry to hear about the difficulties you've been experiencing at work. I understand that things started to go downhill when you returned from maternity leave four years ago to work part time. Your supervisor's job was downgraded, you were transferred from department to department, and you became depressed and decided to take voluntary redundancy. I am not sure when you last worked for the company.

On your return from work from maternity leave, four years ago, your employer had a duty to allow you to return to your original job. Because of your inability to work full time (and only part time), you may have been subjected to indirect sex discrimination. This is a very complex area of law; and you are well advised to seek expert advice from a discrimination lawyer. You can read more about sex discrimination and the right to flexible working in the links on the right hand side.

You also may potentially have a personal injury claim, if your treatment at work caused your depression. You may also be able to claim unfair (constructive) dismissal as a result of your voluntary redundancy, if you resigned because the treatment you endured at work made it impossible for you to continue working there. You certainly had legal rights as a woman with childcare responsibilities.

But the problem is that you may be out of time in enforcing your rights at tribunal. The law requires that you file a tribunal claim within three months of your dismissal. If you are not too late, then I advise you to lodge a tribunal application, and ask the tribunal to exercise their discretion in your favour. You can get a tribunal application form from your local advice centre, CAB or law centre (they can also advice you about your options and may be able to help you with the tribunal) or make the application online (see the information on tribunals on the right hand side). But you must get advice and act immediately.

Now I've got to go to a disciplinary hearing

Dear Richard
I am the registered manager of a residential home. For the past few months I feel that I have been picked on and discriminated against. I live with a woman and she works as a senior at one of our other homes in the group.

I have been here seven years and have worked in care for 17 years. Everything I do, I hit a barrier; I called agency staff for an evening shift two weeks ago and have now got to attend a disciplinary hearing, yet it is my job to make sure the home is fully staffed. The same is happening with my partner for stupid things. There have been other things as well and I feel, as a manager, I am being unfairly treated.

Richard says:
It appears as though you and your partner have been subjected to unfair treatment (and possibly discriminatory treatment) at work and that you have been subjected to disciplinary action. I am assuming that you both have a same sex relationship that is known about or suspected at work.

Since 2003, it has been unlawful for an employer to discriminate against its workers on the grounds of their sexuality. Harassment and less favourable treatment are particularly outlawed. You both have the right to bring legal proceedings for discrimination at an employment tribunal. But this should be the last (and not the first) resort, since you both remain employees, and any legal proceedings will be likely to damage your working relationship.

It is better to file a grievance (make a formal complaint) first. You can read more about this in the guide 'Dealing with discrimination at work. How to use the grievance procedure'. It is advisable to mention discrimination in your grievance, so that if your bosses treat you unfairly for making a complaint this mistreatment will count as victimisation, which is also illegal.

Your grievance should be treated with sensitivity and in confidence. Check the company's disciplinary and grievance and equal opportunities policy in the company handbook. You also have the right to send to your employer a discrimination questionnaire, asking questions about why you both have been treated in this manner, whether other employees have been so treated, and other relevant questions. If your employer fails to reply to these questions or gives evasive answers, this may confirm your suspicions or allay them, that you have both been discriminated against. See the link on the right hand side for more information on sending a questionnaire.

Whatever you decide to do it's important to get advice on your individual situation first. An adviser can help you to weigh up your options and advise on the best way to go about things for you. I hope that this helps.

My working life has become unbearable

Dear Richard
I don't know if you can help, I was seeing a work colleague for sometime and decided that the relationship should end. Subsequently, I was physically attacked by this woman at work twice which was witnessed and also recorded on the works CCTV system. In the meantime my line management became extremely hostile by quoting that other organisations wanted me out.

I was forced to submit a formal complaint for harassment, now my working life has become unbearable whereby my Equal Opportunities and Diversity team have instructed me to withdraw my complaint by blackmailling me; claiming that my employers would sack me for using the company mobile phone and that I would be given a criminal record. The subject of the phone was not raised until I put my complaint in. Also I have witnessed my line manager using his company mobile for un-official business and logged these events. Surely this cannot be fair. Can you please give me some advice?

Richard says:
I am sorry to hear of your problems at work. My understanding is that you had a consensual relationship with a colleague and that she became upset by your decision to break up. As a consequence, she physically attacked you at work twice. Furthermore, you have been blackmailed because you complained about that with your employer. Lastly, your line manager has become extremely hostile towards you.

You may have a possible claim for sexual harassment, in that you have been sexually harassed by a colleague, on the basis of the breakdown of your previous relationship with the colleague who attacked you. The physical attack was possibly a criminal offence too, therefore you could inform the police of that. Since you have been physically attacked twice in a period of six months (I assume), according to the Protection from Harassment Act you may have a further claim for non discriminatory harassment.

You have rightly raised a complaint for the harassment you have suffered. Assuming that you have mentioned that the harassment was discriminatory, you have done what is called a 'protected act'. Since you have been blackmailed for your complaint, you are entitled to bring a claim for victimisation. It is unlawful to punish an employee who raises a complaint of discrimination at work. You can read more about harassment and victimisation in our guide 'Is that fair? How to recognise discrimination' - see the menu on the right hand side.

With regard to the personal use of the company's mobile, I am assuming that you don't deny that. You said that having raised your complaint, you have been blackmailed to withdraw it, otherwise you would have been dismissed for improper use of the company's mobile. You also said that your line manager committed the same act of misconduct as you, but without suffering any threat. This could be victimisation against you in that you (who complained) were threatened with sanctions, whereas your line manager (who did not complain) was not so sanctioned.

My advice is to raise another formal written grievance to complain about the victimisation and not to withdraw your previous complaint. I also advise you to keep a diary of events in order to keep a precise record of the acts of discrimination you have been suffering. It is important that you get expert advice on your case. Feel free to contact me if you need further legal advice.

My line manager is aggressive and threatening

Dear Richard
Whilst at work my line manager asked me about doing overtime. I informed him I did not want to do overtime at present. He then, in a very aggressive voice, said to me, 'Do not forget that you will be 70 next month and that your contract is coming to an end.' Thus meaning I will not have a job next month.

I have been unfairly treated by this person in the past. And also whilst on duty he tried to block my path when I was leaving work. I found this very threatening towards me. And would say it is bullying. Can this person treat me in this manner?

Richard says:
I am sorry to hear that your line manager is bullying you. It sounds like he threatened to use your age as an excuse not to renew your contract unless you agreed to do overtime.

I can’t tell from the information you’ve given me in your question, whether you are an employee, a contract worker or working under some other kind of arrangement. Provided you are an employee or contract worker, you are covered by the age discrimination laws.

Under the age discrimination laws, the only way your employer can legally get rid of you because of your age is by way of retirement. Workers covered by these laws can only be made to retire once they have reached retirement age. The lowest the retirement age can be is 65 but it could be older if the employer has set it higher. Check what the retirement age is at your place of work. If there are employees there, who are older than you and have continued to work, it will make it harder for your employer to argue that he has set the retirement age at 70 or below.

To retire someone legally, an employer has to go through the proper retirement procedure. This includes giving you six months’ notice of their intention to retire you and giving you a chance to request to work beyond retirement age. It sounds like your employer won’t have done this if they don’t renew your contract in June.

You could complain to an employment tribunal that you have been unfairly dismissed for either of these reasons. If you think the real reason they didn’t renew your contract is not because of your age but because you complained or refused to work overtime, you might also be able to complain to a tribunal that you have been unfairly dismissed on these grounds. It will depend on how long you have worked for your employer and the terms of your contract.

There is a three month time limit for bringing unfair dismissal claims so you would need to act quickly.

What you can do now? If you are an employee or a contract worker, it’s against the law for your line manager to harass you because of your age. If you feel intimidated by your line manager’s threat to use your age as an excuse not to renew your contract, you could make a complaint to your employer. This is called ‘raising a grievance’. I’d recommend that you talk this option through with a specialist employment adviser at your local advice agency before taking any action. You’ll be able to give them more details about exactly what has been happening to you so they can help you to word the grievance in the best way possible.

March 2010