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.

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.

November 2008