Maternity discrimination?

[papasmurf1cx]

Also with the insurance provider if the person you spoke to is merely a 'pleb' then you need to go up the management chain. AS SarEl says argue with them and as long as you can show that they assessed it wrong then they will support you. If they insist then ask them about their complaints procedure. Don't stop the complaining until it is out of the insurers hand and goes to the regulator.

[mumisskint]

Ok, have complained to the helpline of the insurer who has now sent it up the line to their bosses for further assessment and sent in a grievance to the Chair of our Trustees. Do I just wait now? Do I calculate the tribunal submission 3 months less 1 day from the date he told me I couldnt have my hours back in December or from when I returned in January? xx

[papasmurf1cx]

What exactly did you put in the grievance? Discrimination cases where one grieves about it is basically 6 months less a day, I think.

[SarEl]

They are 3 months less a day but can be extended to six months less a day by a tribunal where there is an ongoing attempt to resolve (for example a grievance). I would count the action from the date in December to be on the safe side, and submit within the three months deadline - that way you are sure. So work out what you want to say on the form now and have it ready to go - you can get the form online.

 

PS - Don't forget that there also may be a separate but linked claim here for unfair dismissal on the redundancy selection process. I would submit two separate claims - one on the discrimination around maternity, and one for unfair dismissal on the grounds of unfair selection for redundancy. Let the tribunal link them. Then if one falls, the other doesn't have to.

[mumisskint]

Hi, could you lay mans terms me why this would constitute unfair dismissal? Also my final date of working is March 18th. I have a weeks leave booked for half term next week and five weeks holiday I built up over my mat leave. Do I have to go in ? Is there anything I can use that means I dont have to but without touching my holiday so they pay me for it as a result of bringing this action? If I were to walk / refuse to go back could I claim constructive dismissal instead and hope any tribunal would award the £500 redundancy / holiday pay? We are down in Devon there are no jobs in Devon so need to survive as long as possible. Many thanks Mum xx

[elche]

Discrimination cases where one grieves about it is basically 6 months less a day, I think.

 

Can I add my 'ten cents' to this thread.

 

Firstly, I just wanted to point out for the sake of clarity that I think what your referring to effectively 'died' when the Employment Act 2008 was passed, as this repealed the SDRP?? (apologies if this is wrong - oh how I miss my LexisNexis).

 

Of course an ET's ability to accept late claims under the 'just and equitable rule' or 'not reasonably practical' remain unchanged by the 2008 Act.

 

Thus I think the OP should go for 3 months - and to be safe as we only have limited facts in a forum such as this, surely she should go for ET1 with ET on 9th March 2011. I'm not saying this as a concrete fact - (linked acts etc), - but surely better early than late!

 

Secondly, I agree with Sarel's comments about the BTE insurance cover. Surely the 'trigger' is not your pregnancy in August, but your detrimental treatment in December upon your RTW from mat leave. I would push the insurer and read the actual T & C's of the policy carefully.

 

Thirdly, it seems like you may have a good claim, but may need a little help to bring it properly. In case the insurer does not come through, do you have a local law centre or CAB that might help. Community Legal Advice may give you 2 hours of advice free.

 

Best of luck, and please, please keep us updated on progress

 

Che

[elche]

1) Hi, could you lay mans terms me why this would constitute unfair dismissal?

(2) Do I have to go in ?

(3) Is there anything I can use that means I dont have to but without touching my holiday so they pay me for it as a result of bringing this action?

(4) If I were to walk / refuse to go back could I claim constructive dismissal instead and hope any tribunal would award the £500 redundancy / holiday pay?

 

Hi Mama, it is a little late now, but I couldn't stop thinking about this thread. I am a little tired but briefly -

 

1) In a nutshell unfair dismissal, (assuming eligibility) is:

 

a) The EE proves they were dismissed,

b) That the reason cannot be one of the 6 potentially fair reasons and;

c) Even where it were a potentially fair reason, in the circumstances the ER did not act reasonably in treating that reason, as a reason to dismiss.

 

I think there could be a few potential heads of claim. Unfair Dismissal (when dismissed if not for a fair reason), suffering a detriment due to mat leave (the 5 hours lost), which would be direct sex discrim entitling you to an I2F award in line with the Vento guidelines, aggravated damages (maybe), interest on the aforementioned, potential unlawful deduction from wages claim re the 5 hours???, loss of statutory rights (if over one year), ...... not sure what else of the top of my head - there could be others... there is 'more than one way to skin a cat', and some of the above claims may 'cancel each other out' Generally speaking 'double recovery' is not allowed.

 

2) Yes, if you want your notice pay you have to be ready and willing to work your notice. An ER stopping you working your notice (when you are willing to work it) is different, and then you may not have to go in.

 

3) Unlikely unless your ER will let you 'unbook' your holidays - generally speaking the WTR's give ER's more power than EE's over the taking of holidays - subject of course to relevant notice being given and the 'power' not being used in a way that could undermine mutual trust in the employment contract - i.e. not as a 'punishment' for bringing a claim.

 

4) Just don't go there - an oft quoted fact on this forum is that less than 3% of CD claims are successful - see http://www.personneltoday.com/articles/2005/07/26/30921/the-qualification-for-a-constructive-dismissal-claim.html

 

Hope this is some help

 

Che

Edited February 18, 2011 by elche
easier to read numbers

[papasmurf1cx]

I2F = Injury to feelings jsut so if you wondered.

 

Again do not walk. Let the employer do the bad action and fight it.

 

As money and jobs are an issue in Devon it does not make sense to walk. A tip from the Debt gorums.... find out how much you will have to live on if under benefits and ttry and survive on that now. Put the 'extra' aside and build up a pot to survive on until you find a job again.

[mumisskint]

Hello, Thank you everyone, am still feeling bemused a bit but willing!! I have heard nothing from anyone, no confirmation they recieved the email, no phone calls. Its very quiet and that is a little disturbing. Apparently another staff member is appealing on the grounds that the consultation was flawed. One manager had responsibility for scoring their staff. They had to justify to a panel the scores we had but werent allowed to change them.

[SarEl]

You will just have to sit it out now. Once you start down this road, it is a game of chicken, and you must not be the first one to blink. Fill in the time drafting an ET1 (available on line) as you need to get it in fairly sharpish!

[mumisskint]

Ok, I have an ET1, do I fill this in and get it to the ET people before the grievance is finalised, I was planning on doing it over this weekend and filing it Monday. We dont have any Law Centres left in Devon and the CAB have a 6 week waiting list. Unless the insurance does come through I'm not going to be able to afford a lawyer and I dont suppose this is something that a 'no win no fee' set up would apply to! I will see if I can find one for some free advice next week. I suppose I also should ask for a copy of personnel file and my pay records? Do I have to do this as a Subject Access Request or as I'm still an employee until March 17th do any other rules apply? Have .lovely weekends!! xx

[papasmurf1cx]

All the previous advice was to get it in sooner rather than later. However, in my view to do so while you are appealing the Insurance problem might leave you with another problem. The Insurers normally say that they are not liable for action taken before they consider it so to do so without them on board may give them an 'out'. Personally, I would get back on to the insurers and pester them with this problem. They may suggest to put it in pending your appeal being considered or they may consider the appeal with more urgency. Timing the submission is the issue ie giving enough time to get the insurers on board but if that does not happen to get it in before you are barred from doing so.

[SarEl]

Work out what the three months less a day deadline is and make sure it is in before then, no matter what. If you have to tell the insurers that you are having to submit a holding claim because they haven't got their act together and you can't afford to be out of time on a claim.

[mumisskint]

Ok. Slight problem. When he came to see me in December (it was the 4th, my other half was here and he offered to go but my boss said it was Ok for him to stay) He stated as his opening gambit he couldnt increase my hours over 20 and as a result i wouldnt be able to manage the staff I had been managing as they were in different offices which could have made 20 hours impossible. (I didnt ask for the reduction in 20 hours since the risk assessment to continue.) He then launched into the redundancy process and consultation starting on December 13th and a woe is me performance. He then sent me a letter dated December 4th that stated WE had agreed to my hours dropping and WE had agreed to the changes this would mean to my terms and conditions. I didnt sign it then as I wasnt happy but eventually he pushed so hard I had to sign it on Jan 4th when I returned. My other half has been talking about this this morning and he is very clear WE didnt agree to anything of the sort. It wouldnt have been impossible for me to manage all staff as its only one day a week and for the past six I have been constantly asking him what he wants me to do next as I have had in reality about one days work for the three I am supposed to do. Does this make a difference to everything? Mum xx

[papasmurf1cx]

"I had to sign it on Jan 4th " so you did agree to reduced hours!!! I think you are stu**ed !!!!!

[mumisskint]

Ohhh Bugger! Surely though, the letter was only issued after he said he couldnt increase my hours and he shouldnt have decreased them in the first place to be issuing a letter to formalise what he probably realised he shouldnt have done?!!!

[SarEl]

I am afraid that this is not good. You did agree to it and you cannot prove that you did so under duress. However, you still have other grounds if the person who relaced you was given your job when she was in a different ringfence. My feeling would be to tell the whole story, make the whole claim, and see what happens - do you have something to loose here that you haven't already lost?

[mumisskint]

No, nothing at all, not really. What do I use as my heads of claim. Unfair dismissal or Gender discrimination?

[SarEl]

I would say that you have to focus on unfair dismissal now - unfair selection for redundancy based on the fact that the person selected was in a different selection pool.

[mumisskint]

Ok, will do it all today.

When you get made redundant and you have a 4 week notice period, are you required to work that period. My end date is March 17th. I have the 5 weeks holiday that accrued whilst I was on mat leave, can I elect to use some of that?

[SarEl]

You can certainly ask to use your holiday - if they refuse it must be paid. I wouldn't give up on the refusal to allow you to return to your full hours - just that you will have to explain that you signed an agreement after the event because you didn't know you had a choice. Basically, I would throw in the kitchen sink - see what falls out!

[mumisskint]

Ok! Very exciting all this ... lets see if I'm still saying that in a couple of weeks!!

[SarEl]

Ok! Very exciting all this ... lets see if I'm still saying that in a couple of weeks!!

 

Months, dear - months. It isn't unusual for a claim to take 6+ months to be heard!

[mumisskint]

Six months!! Blimey and I've been trying to work out all day how I'm going to get it in in time and insure that they have agreed I can take the rest of my time there as holiday so I dont have to face any withering looks!

[mumisskint]

Hello! I have today had a response to the grievance email I sent. Its asking me to go in for a meeting on 4th of March with our Chair of Trustees. He wants to know what remedy I want from this. I dont want my job back so what should I be asking for? xx