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Discrimination questions - hiring and firing

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

Do I have a claim?

Dear Richard:
I've got a problem. I applied for a job in the NHS for a theatre post, I was told that I was successful but had to have the usual checks made, for example Criminal Record Bureau and occupational health.

I have had a lot of sickness due to operations and anaemia with my current job and they were told that at interview and they still wanted me.

I went to my occupational health appointment and was failed on my hearing as I am deaf in my left ear and a little deaf in right ear.

I had no power to be able to chat to my potential manager and then I was told that the post can not be taken up by me as I have got to think about the patient and myself.

I am annoyed as I feel it's discrimination as I have worked in operating theatres and wards before without any problems.

I told them I am willing to get hearing aids if that helps but they still said no to me and the next thing that happened will still shock me for a long while I know, they told me a post was available in a ward if I was interested and told me to come look around. I did and said I would take the post and the very next day I was rung up by the ward sister and told that the post for ward work was no longer there as they had no funds to take me on.

Now, not only do they mess me around and upset me based on my hearing they also let me down again which is more hard to understand.

What do you think? Do I have a claim here?

Richard says:
It appears as though you have been turned down for a theatre post because of your hearing impairment. This seems puzzling since you had worked at a theatre post previously without problems. You were also offered a ward post which was later withdrawn. You have potentially claims against the NHS for disability discrimination and breach of contract.

I am going to assume that your previous theatre and ward posts were similar to the present ones in question. Also, that the ward post was withdrawn because of your hearing impairment.

The Disability Discrimination Act requires you to show that you are disabled. In proving your disabled status, the use of hearing aids that improve hearing must be disregarded in assessing whether your disability is long term and substantial and affects your normal daily activities.

The Act protects disabled workers from direct discrimination and places a duty on an employer to make reasonable adjustments. The withdrawal of the job offers could be direct discrimination, in that you have been treated less favourably than a non disabled person (or a disabled person with another disability). The NHS may also have failed to make reasonable adjustments to allow you to work in the theatre, when taking your hearing impairment into account. The withdrawal of the ward post after the job offer had been accepted by you might constitute a breach of contract (non discrimination claim).

It is certain that the NHS will try to defend their decision on the grounds of health and safety and risk to patients, presumably arguing that your hearing impairment might prevent important communications to you from being heard and understood. This duty to the welfare and safety of patients is a powerful argument that might override your right not to be discrimination against. But of course, this presupposes that there would have been a communication problem, that the communication problem could not have been overcome even with reasonable adjustments, and that the communication problem would have necessarily entailed unjustified risks to yourself and patients. However a workplace risk assessment might have allayed these fears, rather than management making assumptions about risks to patients at the theatre or ward.

The NHS would need to explain why the problem of risk is now an issue when it had not been previously. You should consider formally writing to asks for feedback about the reasons why you failed to obtain these two posts. You have the right to send a discrimination questionnaire to your employer, asking the following questions:

Do you believe that my hearing impairment would have posed a risk to myself and patients? And if so, what exactly are the risks? Was the problem of communication the risk? Was this problem mentioned in the occupational health report or was it an assumption made by you? Why did you fail to arrange a workplace risk assessment for me? Would wearing a hearing aid have reduced any such risks? Were reasonable adjustments made when I previously worked? Explain why is my hearing impairment a problem now and not previously? Did you consider making reasonable adjustments before withdrawing the job offer? Has the successful candidate a hearing impairment?

The NHS has eight weeks to provide adequate replies to these questions, failing which a tribunal is entitled to assume that you had been discriminated against on the grounds of your disability.

You should certainly lodge a grievance complaining of disability discrimination. If you are a trade's union member, you should contact them about this matter, as they will have experience in dealing with complaints about health and safety. Finally, you have the right to bring a tribunal claim for disability discrimination. You will need further advice in the event you wish to take legal action.

Fobbed off with lame excuses

Dear Richard
I have been out of work for the past 16 months. Having applied for some 140 plus jobs I have had six interviews.

Many of the interviews went on to a second interview. On all job fronts I have all the qualifications and in some instances more that required. On my last interview I met the other applicants; one older than me and the other younger. As I thought I could out perform and indeed have better qualifications than both of them and I had done the job before. Have to say the older one being 61 did not get the job. I did not get the job being 58, but the younger man, being I would say 39, got the job. When I asked why, I was fobbed of with lame excuses. This has happened to me on five occasions. All these jobs were through the Job Centre. Can I approach them to make an official enquiry on my behalf?

Richard says:
Sadly, there is a lot of age discrimination in the job market and older job seekers usually find it harder to secure employment. Statistically, a 40 year old has a 60% chance of getting a job; this percentage drops to 10% with a 50 plus year old. Remember the present economic climate makes it harder for all age groups.

You may have been a victim of direct age discrimination, whereby a prospective employer has denied you a job offer because you were older than the successful candidate, even though you were more qualified and experienced. The age of the other unsuccessful candidate is evidence of age discrimination. This is unlawful under the Age Discrimination regulations, unless the prospective employer can justify the treatment. Justifications based on stereotypical assumptions that you would quickly get bored with the job because of your age and experience are unlikely to succeed. Business and health and safety reasons are usually put forward as justifications.

You are clearly not satisfied with the feedback reasons for not getting the job. I would advise you to send the company an age discrimination questionnaire. This is to help you gather evidence to show that you are being discriminated against. You could ask questions like: what are the ages, qualifications and experiences of the candidates? Why did he get the job and not me? What is the age breakdown of the company's workforce? Does the company have an equal opportunities policy?

The company has eight weeks to reply to the questionnaire with adequate answers. You can also ask for documents like the equal opportunities policy.

If you end up deciding 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 the company fails to give you adequate answers to your questionnaire within eight weeks the tribunal can infer that discrimination has taken place.

If you suspect systematic age discrimination against you, you should inform the Job Centre, since there probably exist an agreement between the Job Centre and companies that they are equal opportunities employers. The Job Centre should cease to advertise job offers from companies that discriminate. Also check the wording of the job adverts: do they suggest that younger people are preferred?

I fully appreciate how frustrating looking for work can be for someone in your age group. If all else fails, you can bring a tribunal claim for age discrimination against the company as a job seeker. If you do want to take action against a company, such as sending an age discrimination questionnaire or even taking a case to a tribunal then you should get some advice from an advice agency first. They can take you through the pros and cons of each step and help you prepare.

Good luck with the job search.

Overqualified?

Dear Richard
I've applied for a job and the recruiter has come back with the following comment:

"Unfortunately due to your front office experience, our clients feel that you would be overqualified for operations positions and your skills and experiences would not be fully utilised."

I have done an operation role before being promoted to the front office, I know what the job entails and can do the job very effectively.

I was not told that I could not do the job nor that I would not cope. I have been unemployed for over a year and feel that I am being discriminated against because I'm overqualified. Surely if I'm prepared to take on a role which is junior to my previous roles I should not be denied the right to a job?

I am at my wits end, could I please have some guidance as to my legal position and what actions I can take.

Richard says:
On the surface, it looks as though you have been rejected for the job for the operational role because you are over qualified. But more sinisterly, do you believe that you may have been rejected because you are over qualified because of your age? Do you suspect that the company wants to recruit only younger workers for this role?

The age discrimination regulations outlaw 'indirect age discrimination'. For example, a requirement that you must not to be over qualified for the role is more likely to affect older workers than younger ones. Does this apply in your case?

You may want to send the company a discrimination questionnaire (see the link on the right hand side) to help you gather evidence, asking questions like: what do you mean by me being overqualified? Do you believe that I would get bored with the job? Was my age an issue? What is the age of the successful recruit? You could also ask whether it is possible for you to undergo a trial period to see if it would work out.

You have the right as a job seeker to bring an age discrimination tribunal claim, based on the company making ageist assumptions about you. Unfortunately, there is no legal remedy against discrimination on the grounds of over qualification (unless it can be shown that it is 'indirect age discrimination') - even though it is very unfair. The discrimination laws cover only: race, sex, disability, age, sexual orientation and religion and belief. However, I am sure that with your work experience and commitment, you will find a suitable position very soon. I hope this helps.

Final warning

Dear Richard
My son is 22 years old and has Asperger syndrome. He has been working as a nursery nurse in a private crèche since last January.

He received a final warning in July because he had failed to report a child bumping his head. It is final because it is classified as a serious fault.

Unfortunately, I was not aware of the disciplinary hearing until a few weeks later. I think that the crèche is at fault as well because my son should not have been on his own with a large number of children.

Two weeks ago, his team were told that they would receive a warning because parents have been complaining about the standards of care. Since then we have not heard anything from the owners of the crèche. But I am worried that my son is going to be made redundant as he is already on a final warning. He has tried to find the company's Employee Information Binder where they keep the disciplinary and dismissal procedures, the grievance procedure and so on but he was told there is not one.

So we are at a loss on what to do if he has to face another hearing. He is not able to defend himself and I believe that even if he’s not perfect, his employer is failing him and is at fault as well. I hope you can help.

Richard says
I am sorry to hear about your son’s problems at work. Not all conditions are automatically covered by the Disability Discrimination Act, it depends on the affect they have on the person. However, the symptoms your son experiences as part of his Asperger syndrome, for example, social isolation and communication problems etc probably mean that he will be recognised as disabled and therefore covered by the Disability Discrimination Act.

Therefore the crèche has a legal duty to make 'reasonable adjustments' to allow your son to cope at work. Was the crèche aware of his condition? Has the crèche ever obtained a medical report on it and been advised on reasonable adjustments? If not, you should ask your son's doctor or consultant for a medical report and give it to the crèche.

'Reasonable adjustments' could include ensuring that your son had enough staff support in terms of nursery nurse and children ratio numbers, or allowing you or someone else to attend his disciplinary hearing. If the crèche had failed to make reasonable adjustments, then the final warning may have been an act of disability discrimination. Did the crèche take into account the large number of children as a mitigating factor? How have other staff (non disabled) been treated? Check the ACAS code of practice on an employer’s duty to go through a proper disciplinary procedure - see the link on the right hand side.

I would advise your son to lodge a complaint under the crèche’s grievance procedure. You mention that they don’t have any written procedures. Small employers can be poor in having proper policies and procedures in place. But this is not an excuse for poor management, since they should in any event abide by the ACAS code of practice. If the crèche did not rely on any disciplinary policies or procedures, then the final written warning was probably unfair; and indicative of discrimination if they did not have an equal opportunities policy either. Your son could appeal against the sanction on these grounds.

He should not be at any greater risk than other staff of redundancy. Indeed, because of his condition, he should be treated as a special case. But if he does find himself dismissed, he could bring a claim for unfair dismissal (providing he has one year’s service and is an employee) and disability discrimination. In the meantime, you could inform the crèche that there are disability rights organisations that give advice, guidance and support to employers with staff who have Asperger syndrome.

I suggest you get some further advice on your son’s circumstances from an advice agency so that you know what options you have and the pros and cons of the different courses of action. I hope that this helps.

Impossible to get an interview

Dear Richard
I'm 57, with over 30 years experience within banking and I was made redundant in January after the Lloyds Banking group took over HBOS. I have found it almost impossible to get an interview for the most lowest paid jobs even though my experience and skill sets are right for the positions applied for.

My wife who is 12 years younger than me and has skill sets that mirror mine, has applied for the same jobs and has had success in getting interviews.

Richard says:
This sounds like age discrimination. Direct age discrimination is where you have been treated less favourably than another person because of your age. Your comparator is your wife, who is younger than you, and applying for the same jobs. She is getting interviews, whereas you have not, even though you both have the same skills set.

The employer can try to justify this discrimination on various grounds, for example, you would get quickly bored with the low paid job because you are over qualified and experienced. If this justification is based on stereotypical assumptions about the attitude of older workers, then it is unlikely to succeed.

Frank
However, a more acceptable justification could be the employer allowing younger people the chance to get jobs for purposes of long term employment planning. The present recession is making it very difficult for many people to find jobs, and vulnerable groups (ethnic minorities, the disabled and older people) have the added hurdle of facing discrimination, in their search for jobs. Statistically, people over 50 years stand a 10 per cent chance of getting work. The under 40s stand a 50 per cent chance of finding employment.

Next time you are rejected for a job and you suspect it is because of your age, you could get a younger person to apply for the job, and see what happens. Your wife’s success is evidence of age discrimination. As a job seeker, you are protected against discrimination on the grounds of your age, under the Age Discrimination regulations.

You could send an age discrimination questionnaire (see the link on the right hand side on questionnaires) to these companies, asking questions like: what was the age of the successful candidate? What were his/her experience and qualifications? Why did he/she get the job and not me? What is the age breakdown of the workforce? Do you have an equal opportunities policy? If you are not satisfied with the replies to your questions, you can bring an age discrimination claim against the company. It’s a good idea to get an advice agency to help you with all this. In the meantime, good luck with the job search.

'Looks good but is very young'

Dear Richard
I received an e-mail from a company I had applied to saying 'he looks good but is very young.' I meet the exact requirements of the job and believe I received this e-mail as a mistake. Is this direct age discrimination?

Richard says:
I am assuming that you were interviewed for a job and were unsuccessful. What job did you apply for? Were you interviewed? Direct age discrimination is where you are treated less favourably than another person on the grounds of your age.

In your case, you will need to show that the successful candidate was not better qualified for the job and was significantly older than you. Even if you could show this, the company could try to justify your less favourable treatment, usually by arguing that the job required staff of a certain age (for example, for business image purposes). If it came to a tribunal this defence is not likely to succeed since it relies on ageist stereotyping (for example patients preferring older looking doctors).

Receiving the email itself was probably not an act of discrimination, since it had been sent to you by mistake. But the email is evidence of a discriminatory attitude of mind (I trust you have printed it out!) To collect more evidence, you can send the company an age discrimination questionnaire (see the link on the right hand side - it is best to get help with this from an expert adviser).

In the questionnaire you can ask the company: what did you mean by the email? What is the age of the successful candidate? Why did he/she get the job and not me? If you wish to pursue this matter further, you can bring an age discrimination claim against the company as a job seeker. Again you should get an adviser to help you with this - see 'Get discrimination advice'.

Your query is topical given the level of unemployment among young people looking for work. Employers in the present economic climate are looking for experienced (and older) staff unfortunately. Although this is a business decision, nevertheless it is still discrimination to reject job applicants because they 'look young'. Good luck with the job search.

They want to keep the most experienced staff

Dear Richard
It looks like my employer is going to make lay offs. They've said they want to keep the most experienced staff. I have 13 years of experience, but have some medical issues which have cost the company £200,000 in medical expenses. If they let me go, but keep someone who only has two years experience, will I have grounds to sue on health discrimination?

Richard says:
With the current recession, your question about redundancy will be of interest to many people. I am assuming that you suspect that the real reason for your possible redundancy is because you are costing your employer £200,000 a year in medical fees. If this were the case, then any redundancy could be unfair and discriminatory on the grounds of disability, depending on the nature and extent of your medical condition.

You say that your employer would be using work experience as the selection criteria for redundancy, with the less experienced making way for the more experienced. You have 13 years work experience compared to someone else with only two years experience, who may be kept on in preference to you.

You need to check what the company’s redundancy policy states as the redundancy selection criteria. A lot will depend on who else may be made redundant: how much work experience do they have? What are their medical fees? Making such a comparison might confirm or allay your suspicions.

The main rationale for redundancies is to cut costs. Saving on medical fees could be used as a fair redundancy selection criteria. But if such a policy adversely impacts on you more than non disabled workers, then you might have a disability claim, based on your employer’s failure to make reasonable adjustments. This is because such a policy would put you at a substantial disadvantage compared to non disabled workers, and consequently medical costs should not be used as a policy.

But certainly if the redundancy selection criteria being used is a sham, then any redundancy would certainly be unfair and possibly discriminatory. This is a very complex area of law; and you should seek expert advice.

Happy birthday?

Dear Richard
I am 65 in December and my employer has said that they cannot offer me employment after my birthday. If this is the case am I entitled to redundancy? If I am refused continued employment and my work is given to a new employee, does this affect my rights?

Richard says:
It sounds as though your employer is retiring you at 65 years. This is legal so long as there is not a Normal Retirement Age (NRA) higher than 65 years at the company. Try and find out what the Normal Retirement Age is at your company. Is it in your contract? What age do other employees normally retire? If there is a higher Normal Retirement Age (say 67 years), then any retirement at 65 years may possibly be unfair dismissal and age discrimination. See the links on the right hand side for more information on unfair dismissal and age discrimination.

Ice cream tasting If your employer wants you to retire they have to follow a procedure laid down in law. They must give you at least six months notice and have a duty to notify you in writing of your right to request to work beyond 65 years. And you have the right to make this request, a request which your employer must consider but not necessarily grant. If they don't grant it there is the right of appeal.

If your employer doesn't follow this process you may be able to claim unfair dismissal or age discrimination depending on the seriousness of the breach of procedure. A serious breach would be where you were not given written notification or there was no consideration of your request to continue working or there was no appeal. In such a situation, the dismissal may be automatically unfair and age discrimination.

If you are lawfully retired, I am afraid that your employer can give your work to a younger or new person. On retirement, you should be entitled to all your normal legal and contractual entitlements, including any pension entitlements.

The law on this subject is complex so it's important that you get legal advice.

Retirement is different from redundancy in that a job no longer exists in a redundancy situation. Because you are being retired, unfortunately you are not entitled to any redundancy payment. However, some unscrupulous employers try to save money by disguising a redundancy situation by using retirement as the reason for termination. This may be particularly tempting for employers in times of recession. You need to check if your job is being deleted. If so, then this is a redundancy situation. Again you should seek advice from an expert.

Do I have a discrimination case?

Dear Richard
I'm presently an agency worker with my employer. I recently asked my line manager about the company’s plan for me, for example, do they have any plans for making me permanent? He explained that he is satisfied with my work and I have improved drastically in my job for the past two months since he is been with us, but my position will be advertised externally in January and I will have to apply for the post afresh. I asked him to explain why the other white agency staff are been given permanent contract without the procedure above and his reply was ‘maybe their manager likes them or because their position is junior’, despite enormous evidence that this is done across all levels.

The other forms of discrimination I’m facing is that I'm been made to work twice as many hours as everybody and despite being an agency staff I'm not been paid for the extra hours. And lastly I’m being denied holidays because my line managers thinks he's got some deadlines to meet and I need to be around all the time to assist him despite several complaints about my health.

I've complained about all this to my agency but they seem to be only interested in their client and not in my own ambitions and health. They keep on telling me that the market is not that good at the moment so I should endure all this treatment. What can I do, do I have a case if I bring up a discrimination case against my employer?

Richard says:
It is important to establish who exactly is your employer, as your employment rights depend on this fact. If the employment agency is paying you, then you are an agency worker, and the hiring company is not your employer (although the agency need not necessarily be your employer). If the hiring company is paying your wages, then the company is your employer, and you are not an agency worker but an employee of the company (possibly a fixed term employee).

Based on the facts of your case, I suspect that you are an agency worker. You wish the hiring company to make you permanent, but you have to re apply for your old job, whereas other (white) agency staff do not have to re apply, but instead have been made permanent automatically. You are also working longer hours but without extra pay, compared to white agency staff. You are also being denied holidays. Your complaints to the employment agency about your working conditions and your health problems are being ignored. You may have claims of race discrimination against both the employment agency and the hiring company, depending on what is the claim and who is to blame.

As an agency worker you have the right to paid holidays. You may have a wages owed claim for working overtime without being paid for it. You can file a grievance or bring a tribunal claim against both the employment agency and the hiring company - I suggest you get some advice on this from an advice agency.

Companies use agency workers for reasons of flexibility and avoiding liability for unfair dismissal and redundancy. For business reasons, employment agencies invariably put the interest of their clients before those of agency workers. But as an agency worker you do have legal rights - see the link on the right hand side.

You might consider signing up to other employment agencies, if this one is not supporting you or giving you work. But certainly as a contract worker you can bring a race discrimination claim against the hiring company. Remember that even though the current jobs market is depressed, you still have rights under the law.

I am totally lost

Dear Richard
I need advice. Many thanks for the help. I have lost my job by my employer calling me in for a meeting and suggesting to me that I am not capable of doing my job. This point is only picked so that they have a 'fair reason' to dismiss me. But they have dismissed me without notice and asked me to leave the meeting straight out of the door. I have acted quite professionally. I left the building and have been looking for another job for a week now. They even told me that they can't give me a reference. I am totally lost.

The reason for all this started when I wrote to my manager about my personal circumstances around my children's hospital needs. I had booked 10 days of my annual holidays to go for a one hour visit. I mentioned about not being allowed to work from home while other colleagues can.

I never expected a reply like firing me for that letter which was polite and professional. And the company is one of the top 10 companies to work for and they are doing this.

Richard says:
It is surprising that a top ten company should have treated you in this manner, given that they must have in place disciplinary policies and procedures. There is simply no excuse for this poor standard of management.

You are correct in saying that capability is a fair reason for dismissal. However, dismissal should be the last resort and not the first. The company should have considered ways of avoiding sacking you and supporting you, things like: training, appraisals, monitoring, performance targets, reviews - basically, giving you the chance to improve. All this is assuming that your capability to do the job was the genuine reason for dismissing you!

If you believe that the genuine reason for dismissal was on the grounds of discrimination (for example, race, sex, disability, sexuality, religion or age), then my advice would be different, and your legal rights and protection immeasurably extended.

I understand that your request to work at home, presumably to look after your children, was denied. This could be sex discrimination if the reason for the decision was because of your gender or marital status and based on sexist stereotyping (men should work at the office and not have childcare duties at home). But much will depend on the gender of those others allowed to work at home and whether they have children. If you think this, or another form of discrimination, might have been the reason for sacking you get advice from an adviser as soon as possible. You can also read our guide 'Is that fair? How to recognise discrimination' for more information.

The company appears to have also breached the statutory disciplinary and dismissal procedure that - as a bare minimum - gives you the right to have notice of disciplinary action, a disciplinary meeting and the right of appeal. Check if you got a dismissal letter with reasons for dismissal and informing you of the right to appeal.

You may have an unfair dismissal claim against the company, providing that you have worked continuously for the company for at least one year.

Summary dismissal should be reserved for acts of gross misconduct. This was not the case. You may have, at the very least, a claim for wrongful dismissal, in that you should or could have been (fairly) dismissed with notice (check your employment contract for the notice period for termination) and received your notice pay.

If you would like to think about making a claim for wrongful dismissal, you should get advice from an adviser to help you. But act quickly as there are time limits for making claims.

I notice that you took annual leave to visit your children at hospital. However, you may have had the right to dependence leave (which is unpaid), which is a statutory right, without using up your holidays. If you had asserted this right to dependence leave, and you were dismissed for making such a request, your dismissal might be automatically unfair, for asserting a statutory right (there is no need for one year's continuous employment in this situation).

The law on job references is that employers have no duty to supply references, but if they do, they must be fair and accurate. If you lose a job opportunity as a result of a negative reference, you can sue for negligence at the county court (three years time limit).

My advice is to bring an unfair dismissal and wrongful dismissal claims against the company (there are time limits). See the links on the right hand side for more information. Any settlement to this dispute should include compensation and an agreed reference. Get advice from an adviser to discuss your different options and help you take the best course of action.

I have suffered lies and discrimination

Dear Richard
I am profoundly deaf. I was offered a job in a local shop. They then stalled me on the grounds that I couldn't answer the phone, then they said I could still have a job, but there was a recruitment ban. Then they said the ban had been lifted but I wouldn't hear a fire alarm!

Nine months on and a change of shop manager, a sign goes into the shop window advertising for staff. The sign is then taken down and I then get a letter saying my application was unsuccessful.

One of the shop assistants has told me since, there isn't even a fire alarm in the shop!...I have emailed, saying I feel I have been discriminated against and asked for an exgratia payment, after speaking to a legal adviser. They replied offering me an interview for two jobs within the shop. I declined the interview on the grounds that I had suffered lies, discrimination and how could two jobs suddenly appear?

They have replied saying they have done nothing wrong and they won't offer any compensation. Do you think this is a case for employment tribunal please?

Richard says:
I understand that you applied for a job, which was ultimately unsuccessful, after the shop had messed you around and gave excuses for not recruiting you.

The Disability Discrimination Act protects job seekers and requires employers to make 'reasonable adjustments', to allow disabled workers to cope at the workplace. The shop cannot simply reject your job application without first considering how you, a profoundly deaf person, could work effectively and in health and safety (even assuming that the phone and fire alarm reasons were genuine reasons).

It would be a defence for the shop to say, for example, that the adjustments would have been impracticable or uneconomical to make. But it appears that the shop simply decided that it would have been too much trouble and expense to employ you. But this is not good enough. There are organisations that could provide advice and support to employers who recruit disabled workers.

In my experience, you will have to take this shop to tribunal (see the links on the right hand side for information on tribunals) before they can be persuaded to offer you compensation. Any tribunal award would cover injury to feelings and loss of wages (as a result of being denied the job). Get advice from an advice agency or solicitor on how to go about this. You need to act quickly as there are time limits for taking a claim to a tribunal.

Although I can understand why you did it I am a little concerned that you rejected the two job interview offer - it might have been genuine! The law requires victims of discrimination to act reasonably to try to reduce their loss. My advice is to follow up this job interview offer if you can. If you are rejected again, you can bring another discrimination claim. Good luck.

What happened next?

Richard
The shop has now confirmed that there is no fire alarm in service, they have also suggested to one of the staff who has spoken to me, that she may be given a disciplinary for disclosing the fact that the alarm is absent. Is it allowed not to have a working fire alarm and are they allowed to discipline a staff member for disclosing this?

Richard says:
The Health and Safety at Work Act 1974 places a duty on employers to minimize the risk of fire, that includes having fire drills, escape routes, fire extinguishers, and of course, fire alarms.

This particular shop may well be in breach of these legal duties. The Health and Safety Executive (HSE) is the main enforcement agency, and has the power to enter premises, make investigations, interview employees and employers and order improvements or even close the shop. You may wish to contact the HSE about this matter for further advice (see the link on the right hand side).
It is very worrying that a worker is being disciplined for disclosing to you the absence of a fire alarm. An employer must not discipline an employee for raising health and safety issues; but these concerns should be disclosed to the proper authorities. I would advise that this person contact the HSE, and that she also seeks legal advice about possible victimisation for whistleblowing. The fact that the shop now admits that there was never a fire alarm could justify you taking further legal action for disability discrimination in not getting the job in the first place.

I've been sacked for 'not being capable'

Dear Richard
I am at my wits end. I have been sacked from my job as housekeeping manager in a hotel (even though I have 25 years plus experience) for not being 'capable to do the job'. They called me to a room without warning and said I was to leave.

I have previously taken just two weeks off sick with depression partly due to their bullying tactics which I have complained of, and the sudden death of my mother.

Other staff have noticed the tactics being used, 'over loading my job so that it is unachievable', then shutting me in a cupboard to shout at me out of sight of others. A member of staff at their exit interview even voiced their concerns of my treatment. My predecessor left for the same reasons. They had no complaints with my work for six months, until my illness. Then the management took it in turns to intimidate me and reduce me to tears. Not once have I had a verbal or written warning advising me that I must improve or face loosing my job.

I go on holiday in one week, I have no means of support and live in rented accommodation. Please, please can you help me?

Richard says:
I am sorry about the terrible experiences you have suffered at work. As I understand your problem, you have been sacked for the alleged reason of your capability at work, that you had been on sick leave because of depression caused partly by workplace bullying, and that you had complained about your treatment at work.

There are many legal issues in your case, and I will try to explain them to you. Firstly, if you have worked for at least one year, you can bring an unfair dismissal claim at tribunal, within thee months of your dismissal. (See the links on the right hand side for information on unfair dismissal and taking a case to a tribunal.) This is because your dismissal may be unfair in that with 25 years of hotel work experience, it seems unlikely that suddenly after your illness you became incompetent at your job. If an employer wants to dismiss you because you aren't capable to do your job the employer has a duty to give you warnings about your work standards, provide training and allow you time to improve your performance. Dismissal should have been a last and not a first resort.

Your dismissal may have been procedurally unfair in that your employer had a duty to give you notice of disciplinary action, invited you to a disciplinary meeting, and offered you the right to appeal. None of these things happened - you were denied all of these standard workplace rights. I would say that you have a very good unfair dismissal claim.

Secondly, if your depression was caused by bullying by management, you may have a personal injury claim against your employer. You will need to seek further advice from a personal injury lawyer. The time limit for such a claim is three years. See the links on the right hand side for more information on personal injury. The harassment and bullying against you was horrendous; and if you believe that this was done to you because you were a woman, then you may have a sex discrimination claim against the hotel. You can bring this claim together with your unfair dismissal claim at a tribunal.

Thirdly, if you mentioned discrimination in your complaint of bullying, you can claim victimisation, because you were sacked for complaining in the first place. For more information on victimisation see our guide 'Is that fair?' in the menu on the right hand side.

Fourthly, you may have been bullied and dismissed because you went on sick leave with depression, for two weeks. Although employers can dismiss for reasons of absence from work, they must get a medical report beforehand and then have a consultation meeting with the worker. It appears that none of this happened. Also, it seems unreasonable to dismiss you for such a short time off work. This suggests strongly that your dismissal was unfair.

It seems that the hotel managers have violated just about all your employment rights. I strongly advise you to seek further advice and assistance to bring a tribunal claim against the hotel for unfair dismissal and sex discrimination. Remember that you only have three months from the date of your dismissal to put in a claim so act quickly. An adviser will also be able to check if you are entitled to claim any benefits to help with your rent and other living expenses. Good luck.

Why am I the only one at risk of redundancy?

Dear Richard
I am an Asian woman. I have worked for my current NHS employer since January 2006.

The organisation is going through complex organisational change. I was moved across to a new role, without my consent or change to my contract, resulting in a very different job content.

My previous job was given to a white junior male and a new role for which I should have been allowed to apply was given to a white female with less experience than me. Now I am being told that my job is at risk of redundancy, as there are no jobs in the new organisation for me. Yet the role they moved me to is still available.

No other posts in the entire trust have been put at risk, as far as I am aware.

I believe there is discrimination. In addition, since I was moved across to the new role, the line manager, has been bullying and threatening me.

Do I have a case to pursue? I have recently submitted a grievance and the panel is rather top heavy with four directors to hear my grievance! Please advise what I should do?

Richard says:
There are essentially three issues with your situation at work, namely, redundancy, harassment and discrimination. Because of the restructuring, you are at risk of redundancy. However, you might be facing a 'sham' redundancy in that your work is still needed, even though your employer is trying to make you redundant.

Yes, it does seem odd that you are the only one at risk of redundancy. Find out about the redundancy selection pool and the redundancy criteria. Your employer should use a proper redundancy procedure that includes giving you notice of redundancy, a consultation meeting, efforts to find you alternative work, time off to look for work, and any redundancy payment. Check the trust redundancy policy to see if correct procedures have been followed. You can read more about this in the links on the right hand side.

Your employer should move you to another job only with your consent, but you can be asked to move if the request is reasonable, lawful and for good business reasons. If your new manager is harassing you, you can file a grievance against him for bullying. I understand you have already filed a grievance. If you mentioned discrimination in your complaint, then any mistreatment against you as a result of this grievance is unlawful victimisation. For more information on what counts as victimisation see our guide 'Is that fair? How to recognise discrimination' in the menu on the right hand side.

The seniority of the grievance panel hearing you complaint depends on which stage your complaint has reached. The higher the stage, the more senior the panel members. Check the trust's grievance policy.

discrimination
It is rather suspicious that your previous role has been given to a less qualified person, and that the role you weren't allowed to apply for also went to a less qualified person. This is potentially discrimination on the grounds of race and sex.

You could consider raising another grievance detailing these complaints (and mention discrimination). You are more likely to get the best result if you get an adviser to help you with your grievance. Bear in mind that there are strict time limits for bringing grievances so you need to act quickly. You can get advice from your trades union, if you are a member or from a local advice agency.

I was sacked without warning

Dear Richard
I have recently had my job terminated on the grounds of capability due to ill health. I was off on bereavement leave, as my dad had died and it was a very traumatic time as there were a lot of complications and domestic issues surrounding his death.

I was off work for five months with bereavement and stress. Most of the stress was work related as I have been discriminated against, bullied and victimised at work for the last twelve months by two different managers. I was harassed on my return to work where I was isolated and then the next day I was given a letter saying I was having my job terminated, despite having a GP note and never having any warnings or discussions about my attendance prior to this bereavement.

I feel this was mitigating circumstances and no face to face medical evidence was available to my employer to make their assumptions on my capability for work. I do have two on going grievances at the minute one involves my employer not making reasonable adjustments for me for over twelve months after being advised to do so by the occupation health service, I have disc degeneration and arthritis which my employers know about and which was diagnosed two years ago.

I also have cases of Data Protection being broken by my personal details being divulged. Due to being harassed and bullied by one line manager I was forced to give up a coaching job and revert back on line only to be given a different line manager who was friendly with the previous manager and victimised me for my grievance against him.

Richard says:
I am sorry to read about your family bereavement and dismissal from work. I understand that you were dismissed for capability due to ill health, you were on bereavement and stress leave for five months, your managers' discriminatory bullying caused your stress leave, you have put in two grievances (formal complaints) about reasonable adjustments and data protection issues, you have lost the coaching role because of this harassment, and you feel victimised for complaining previously.

Your dismissal may have been unfair because your employer failed to obtain a medical report beforehand and failed to take into account your mitigating circumstances. This is particularly unfair since your stress leave was caused by management bullying. The purpose of a medical report is to assess why you were absent, what caused your absence, and whether such an absence is likely to happen again.

Your employer may have dismissed you as a way of ignoring these issues and your grievances. Your employer appears to have completely ignored your right to have written notice of the risk of dismissal, be invited to a disciplinary meeting and be offered the right of appeal. You need to check the company's disciplinary policy to see what should happen.

You potentially have a disability discrimination claim for failure to make reasonable adjustments and victimisation for filing a grievance (again check the company's grievance policy). The reasonable adjustment claim is particularly strong since your employer was aware of your disability and ignored the recommendations from their own company doctor. Unauthorised disclosure of your confidential and personal details is a breach of the Data Protection Act. You can get more information about your legal rights on the Data Protection website - see the link on the right hand side. If the loss of your coaching job involved a loss of pay and status or work that you enjoyed doing, then you can bring a claim for this loss.

You may also have a personal injury claim for the stress caused by the discriminatory bullying at work. My advice is to file a tribunal claim (see the link on the right hand side for more information), within three months of your dismissal, claiming unfair dismissal, disability discrimination (and possibly sex discrimination), and personal injury (caused by the discriminatory bullying). You should name the two managers as separate respondents, together with your employer, in the tribunal claim. A claim under the Data Protection Act can be done either through the Information Commissioner or the county court. You have numerous and complicated employment claims; and I advise you to seek further advice from a specialist employment lawyer urgently. I wish you good luck.

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
Dscn0532 OpI 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
Dscn0517 OpI 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:
Any age
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.

You can read more readers' problems by using the menu on the right hand side.

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.

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.

March 2010

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