Discrimination questions - hiring and firing

Our discrimination expert, Richard Leong, answers your questions about unfair treatment 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.

Should I just move on?

Dear Richard
I have recently been summarily dismissed from my job as a shop assistant. The reason for my dismissal is that I allowed another member of staff to use my PIN number to log into the till system. She had forgotten hers and telephoned me in a stressed state to say that she was opening the shop (alone) and couldn't remember her number. I reluctantly told her to use mine as this was the only way the shop would be able to trade. I recognise that this amounted to gross misconduct under the company's rules, and having attended disciplinary meetings, I explained my reasons. My appeal against dismissal was rejected.

However, it is common knowledge in the shop that another employee has also allowed her PIN number to be used by a fellow worker. The management is aware of this but there has been no action taken against her. Does this constitute discrimination against me, or should I accept the company's decision and move on?

Richard says:
I must say that it seems to be a very harsh sanction to summarily dismiss you, particularly as your conduct was not for personal gain but to further the interests of your ex employer. A fairer punishment would have been a final written warning with training on procedure.

The question is whether your treatment was unfair/unreasonable or discriminatory, in the light of another worker not facing any sanction for committing essentially the same offence.

You may have a claim for unfair dismissal (if you have worked for at least one year) on the basis that the company acted inconsistently by treating two workers differently for committing the same act of misconduct.

You have three months from the date of the dismissal, to bring an unfair dismissal claim at a tribunal. You may also have an age discrimination claim for indirect discrimination. You believe that your failure to be promoted and your dismissal resulted from treating you less favourably than another worker, because of your lesser work experience, compared to her. If your employer is treating more experienced workers differently for that reason, this is a form of indirect age discrimination against less experienced (and usually younger) workers, like yourself. I am assuming that you are younger than this other worker.

This is a very complex area of law, and you will need further advice from a discrimination lawyer, if you wish to take the matter further. Again, your remedy is to bring tribunal proceedings for age discrimination. You have the right to serve a discrimination questionnaire on the company, asking questions, like, why have you treated me differently? Was your decision based on work experience? Does the company have an equal opportunities policy? Good luck.

I was told to produce my passport or leave

Dear Richard
I have been with my employer for over four years now coming up to five. I am an immigrant with limited leave to remain in the UK which always, since my appointment, has been extended with the Home Office.

When my leave was about to expire, I sent an application to the Home Office for an extension as I have always done. But due to the complex nature of my case there was a delay. While I waited for the Home Office's decision, I was asked to provide evidence of my right to work in the UK.

I told my employer my passport had been sent to the Home Office and I was waiting. However I provided him with evidence from the Home Office that my application had been received. Later, when I was still waiting for the decision to come from the Home Office, I was asked to prove that my case was indeed still being handled. I did provide this evidence and was allowed to carry on working.

When the manager that handled my case went on holiday, somebody else took over, (I had had a lot of problems with him at work), I was called in and told to produce my passport or leave. I informed him my passport was with the Home Office and was suspended. One week after I got a dismissal letter.

The law on immigration says while an in-time application for extension of the visa is being processed and a decision awaited, and until the decision is reached, the applicant remains on the same conditions as previously before the application. So my right to work in the UK was never in question. What claim(s) can I bring against my employer? Is a claim for racial discrimination on grounds of suffering detriment because of not being a national of this country possible?

Richard says:
I understand that you are someone with limited leave to remain in the UK and presumably with permission to work. You have made an in-time application to extend your leave to remain, sending your passport to the Home Office. You are presently awaiting a decision on your application.

In the meantime, you continue to have permission to work, pending the Home Office decision.

The question is whether your ex employer discriminated against you by dismissing you when you failed to prove your right to work. This is not an easy question to answer, since there is a conflict between your right not to be discriminated against, and your ex employer's duty not to employ workers without the right to work in the UK.

The immigration rules state that an employer must not employ workers who do not have the right to work in the UK. Employers, moreover, must check a worker's immigration documents (including passport) to see if they have permission to work. There are severe penalties for employers who fail in this duty. The question is whether your ex employer acted reasonably in asking to see your passport and then dismissing you for failing to prove your right to work in the UK.

There is also an issue about whether your ex employer was reasonable in not accepting evidence of application, short of passport evidence.

You, of course, have the right not to discriminated against on the grounds of your nationality. Your ex employer may have discriminated against you by treating you less favourably as a foreign national than say an EU national, when the company asked to check you passport and then dismissed you, later.

You may also have been discriminated against on the grounds of your race, if, regardless of your nationality, the company would have treated another worker of a different race more favourably.

It could be argued that your ex employer failed to act reasonably by failing to keep you on suspension until you could prove your right to work; or reinstate you after dismissal for the same reason.

The problem with this situation is that there is a conflict of law between immigration and employment legislation. Unfortunately, the courts have tended to prioritise immigration law above employment rights.

In summary, you have the right to claim race discrimination, but your ex employer could legitimately argue that the company acted reasonably in complying with the immigration rules.

I appreciate that this is not a definitive answer to your question, but it the best I can do, and I hope that you find it helpful. If you want to things about taking things further see Get discrimination advice for information on finding an adviser.

They made comments about my accent

Dear Richard
I recently applied for a job and was unsuccessful. However in the email I received from the recruitment agency comments were made about my accent being too strong and the fact that the message on my mobile voicemail said 'be blessed'. My accent is Trinidadian however considering I've been living in the UK since 1999 and working ever since, I don't think it's that strong any more.

I feel that I was discriminated against. I would like to take the matter further. Please can you give me some advice.

Richard says:
So the recruitment agency told you that you didn't get the job you applied for because your accent was too strong and your mobile phone voicemail message says 'be blessed'.

On the surface this suggests they might have discriminated against you because of your race or perhaps even because of your religious beliefs. But you need more information. You can get this by sending the agency a 'race or religious discrimination questionnaire' asking them for more details about how they made their selection, why they rejected you, the ethnicities and religious beliefs of the other candidates and of the person they hired. You have three months from the date of the email to do this. Or you could simply ask them (in writing) what they meant by your accent being too strong and what their issue was with your voicemail message.

If they fail to reply, or their replies seem to confirm your suspicions, you could think about bringing a claim against them and the employer in an employment tribunal. Get some advice about this before you make up your mind - it's not an easy task. But you need to work fast, you only have three months from the date you were discriminated against to bring a claim.

You contact the Equality and Human Rights Commission helpline (see the link on the right hand side) for more information and advice about your case and how to go about sending a questionnaire.

They were looking for someone 'mature and stable'

Dear Richard
I have worked for a local union for almost two and a half years now as a part-time secretary with another lady. There are only two part-time secretaries because it is a small office. Now just recently the president said that there will be changes and that the secretary position will become one full time job. My supervisor at the local office where we work told us about this opportunity and said that if either one of us was interested we needed to send in our resume and cover letter.

The other secretary has been working for one year and three months and she said that she was not ready for a full time position. I was more than prepared to take the position and did send in my resume and cover letter. Being that I had the seniority I was confident that I would be offered the position. Besides I know I have done a great job. I've never received any complaints and was told by my supervisor that I was an excellent employee.

But then I was told that the position was going to be filled by another individual. This individual actually works with the company the local union represents, she is an older women. I feel I have been discriminated against because of my age (I know that age discrimination usually occurs with older people, not in my case). I am 22 years of age and newly wed. I do believe that this was the reason for them not hiring me.

I asked my supervisor why I was not hired and she said, 'they are looking for someone mature' and stable'. To me this means they needed someone older and someone who is already stable with no kids to take care of, no more school, etc. I feel that they made the decision not based on skills or qualification but rather on maturity and stability.

They also asked me to train this individual. But because I want to keep my dignity I will not train. My question is, was there any kind of discrimination here or not? And if so, what actions can I take if any?

Richard says:

It is against the law for trade unions to discrimination against job applicants and employees because of their age or because they are married. If the union selected the new secretary in preference to you because she is more 'mature and stable', they may have discriminated against you because you are young.

As you said yourself, telling you they were looking for someone 'mature and stable' just sounds like a different way of saying they were looking for someone 'older'. I can't tell whether or not you might have been discriminated against because you are married because I don't know whether or not the woman they hired is married.

You could think about making a complaint to your employer or, as a last resort, take your employer to an employment tribunal for age discrimination. If you would like some help with this, you can contact the Equality and Human Rights Commission (see the link on the right hand side) or speak to an adviser who can deal with employment law issues at your local advice agency.

You may also have an unfair dismissal claim. If your job has been upgraded to full time, and your part time job has effectively disappeared, that sounds like you have been made redundant. In such circumstances, you should have been offered the full time post, in priority over others.

You may want to reconsider your decision not to train this person. Although I appreciate that it will be undignified in training a person who effectively 'stole' your job, nevertheless, as an employee you have a duty to obey reasonable instructions.

I was told I would have to leave

Dear Richard
About a year ago I was working at a dental practice training to be a dental nurse. I got on well with everybody there and they appeared to like me too. I was on a three month probationary period and during supervision I was told they were happy with my work and how impressed they were with how quickly I picked the job up. I later told one of my colleagues that I was dyslexic.

The next day I was asked to do tasks like filing, count money and put things into alphabetical order, I was observed whilst doing these tasks. One of my bosses asked me to confirm I was dyslexic, which I did and two days later I was told I would have to leave when the three month period was up as they didn't think I was right for the job.

I'm convinced it was because of my dyslexia. Is there anything I could of done about this situation?

Richard says:
Your experience unfortunately is not unusual. Many people with learning difficulties suffer discrimination at work because of ignorance and prejudice by employers. The Disability Discrimination Act provides protection to disabled workers against dismissal from their jobs simply because of their disability.

It appears that everything was fine at work until you mentioned your dyslexia. After that, your manager gave you an unnecessary, simple administration test to check whether you could count money and file things in alphabetical order (which I am sure must have been a demeaning experience for you). Your manager questioned your ability to work effectively based purely on assumptions about the abilities of people with dyslexia. Your dismissal therefore was discriminatory and unlawful.

Moreover, far from dismissing you, your ex-employer had a legal duty to make reasonable adjustments to enable you to work effectively: reasonable adjustments, like, a medical assessment and a consultation meeting, at the very least. Your ex- employer should not have dismissed you as a first option, for there are organisations that provide free advice and guidance to employers on how to assist people with dyslexia to cope at work. You should not blame yourself for losing your job, since you were the victim of discrimination. However, it might be a good idea in your next job to point out to your next employer that there is help out there.

August 2008