Sex Discrimination - I wasn't allowed promotion

[monopoly23]

In the place I work, there is a merit system from 0 to 5. After 6 months of continuous employment, you are given a test to take, and if you pass, you advance to the next merit and get a pay rise. The general manager has to 'sign off' the test before you get your pay rise.

 

I passed my first merit around April 2005 and the second in October the same year.

Merit 3 was due in April 2006, but it was offered late so I took it in May and had the wage increase backdated to April.

 

This is when things got difficult. My merit 4 was due in early October 2006, but I had just found out I was pregnant at the end of September. (5 months pregnant!! :o ) As any relationships with other employees have to be declared, and we hadn't declared it, I handed in my notice so that we wouldn't both get into trouble.

 

My last shift at work was Thursday 21st September as I had a weeks holiday booked, but I didn't actually leave the company until Saturday 30th. The day before that, I'd had a conversation out of work with one of the team leaders. I had obviously told everyone I was pregnant by then because I didn't work there anymore. He told me that I was daft to leave and that I should go and see the general manager, explain the situation and why we didn't inform them of the relationship before.

 

I did all this on Monday 2nd October. The manager agreed to take me back on and told me that I'd have to sign a new contract as admin had processed me as a leaver during my week holiday.

 

All in all, I actually had no time off from work. We work 4 ten hour shifts per week, and I started back at work on Wednesday 4th October. I'd worked 4 ten hour shifts before my week holiday and 4 ten hour shifts the week I returned.

 

Now because my merit had been due in the week I left, I asked when I'd be allowed to take the test. I was told that I'd have to wait until the 12 weeks standard probationary period was over. This would have been 27th December. I was perfectly happy to wait until then.

 

It got to the due date and I asked the Deputy General Manager if I would be able to take the test. Bear in mind that I was 8 months pregnant at this time, but still perfectly able. I was told I wasn't allowed to do it because 'I would have forgotten it all by the time I came back.' Basically he was telling me that because I was about to take 6 months off on Maternity leave I would forget how to do my job.

 

I didn't actually think anything of this except that it was a bit unfair, until I discovered a link on this site to the Sex Discrimination Act some time in June.

 

So I returned to work on 29th June and spoke first to my team leader, then to a manager on shift and then to the deputy general manager. He actually lied to me in that conversation and I know this for a fact.

I spoke to a manager about what the dgm had said, and she advised me to put everything in a letter to the gm before the dgm had a chance to speak to him. (A bit confusing isn't it? We got managers coming out of our ears lol)

 

Anyway, this is the letter I wrote to him:(Ive missed out the names)

 

Hi xxxxxx, I just wanted to write down my version of the events that happened before I left on maternity leave, so you would have it all at hand and a chance to know everything before it’s brought up at the meeting.

 

After I handed in my notice then returned to work on the 4th October, I was told I wouldn’t be able to take my merit until my 12 weeks probation period was over. The probation ended on 27th December 2006 and I asked xxxxx xxxxx if I would be able to do my merit soon as I would be leaving on the 2nd January on Maternity. I was told that I couldn’t take it because ‘I would have forgotten it all by the time I returned’. I didn’t really think anything of this at the time except that it seemed a bit unfair, as it basically implies that I would forget how to do my job.

 

Whilst on maternity leave, sometime in June, I came across a person on a forum I’m a member of who was complaing about being treated unfairly at work whilst pregnant. She mentioned the Sex Discrimination Act 1975 and provided a link which I followed and found that a lot of the Act applies to me.

 

Discrimination to Which Act Applies

1 Direct and indirect discrimination against women

(1) In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if--

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or

(b) He applies to her a requirement or condition which he applies or would apply equally to a man but--

(i) Which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) Which is to her detriment because she cannot comply with it.

 

Section (1) b (i) and (iii) which are underlined, can refer to any pregnant employee at this company if 6 months continuous service are required to be able to take the next merit. I was told that 6 months continuous service was required by xxxxx. I have read through the Training and Development Policy in the new Staff Handbook and there is no mention of this anywhere. If it is an implied rule, it would be impossible for pregnant employees to comply; therefore it would be in breach of these sections of the Act.

I also found that no account must be taken of pregnancy related absence or maternity leave at any time. Either way, I have still completed service whilst on Maternity Leave as this leave cannot be taken into consideration, the same reason I accrued holidays whilst off.

 

3A Discrimination on the ground of pregnancy or maternity leave

(1) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if--

(a) At a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right.

(2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if, on the ground that section 72(1) of the Employment Rights Act 1996 (compulsory maternity leave) has to be complied with in respect of the woman, he treats her less favourably than he would treat her if that provision did not have to be complied with in respect of her.

 

All of Section 3A applies also. At the time I asked to take my merit, I was in the protected period. I was not allowed to take the merit because I was about to be off work for 6 monthsandif I had not been about to leave, I would’ve taken it. I had no choice in leaving on Maternity as it is compulsory.

.

Discrimination by employers

6. Applicants and employees

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman.

(a) In the arrangements he makes for the purpose of determining who should be offered that employment, or

(b) In the terms on which he offers her that employment, or

© By refusing or deliberately omitting to offer her that employment.

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her--

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) By dismissing her, or subjecting her to any other detriment.

 

I was not allowed access to promotion and I wasn’t given the chance to advance. I feel that this is discrimination against me, and none of this would have happened if I had not been pregnant.

Here are some other pieces of information I found whilst researching.

 

Is there less favourable treatment?

 

 

Any less favourable treatment of a woman because she is pregnant, about to go on maternity leave, is, or has been, on maternity leave will be sex discrimination. Less favourable treatment is very widely defined and includes any unwelcome difference in treatment, for example:

§ dismissal because a woman is off sick with a pregnancy related illness

§ dismissal linked to absence on maternity leave

§ failure to carry out a work appraisal because she is going to be on maternity leave for a year

§ refusal of training because of impending maternity leave

§ failure to consult in relation to redundancy because of absence on maternity leave

§ failure to promote or consider for promotion a woman on maternity leave

 

Has the worker suffered a disadvantage?

 

 

The claimant must show she has suffered a disadvantage as a result of the less favourable treatment on grounds of pregnancy or maternity leave. This may be failure to recruit, train, promote, provision of less favourable benefits, facilities, services and any other detriment.

I feel that I have been put to a disadvantage. Male members of staff that commenced work over 6 months later than I did have advanced up the merit scale faster than I have, purely because I had a child. In all my merit tests, I think I have answered 3 or 4 questions incorrectly. The only thing that should have affected my advancement was the fact that I handed my notice in, but I was more than happy to wait the probationary 12 weeks to take the next merit.

My merit 5 would have been due on 27th June had I been given the chance to pass merit 4 on 27th December.

I’m not trying to be awkward, I just feel that I’ve been treated differently. I only wanted what I was entitled to, no more and no less, just the same as everyone else. It’s not just the pay I’ve lost, but it made me feel awful to come back and find that people had moved above me whilst I was off, and people gloating that they were a higher merit than I was, even after nearly 3 years in the company. I’m not late, I’m not a truant and I think I’m a loyal worker for xxxxxx, and have been since I started work here. I don’t understand why the basic policies of training and promotion were taken away from me.

I did not want this to be so formal, or turn out to be so serious, but I had already briefly spoken to xxxxx when I came in to take Merit 4, xxxxx was there too. Also, xxxxx asked me if I wanted to speak to him on Saturday night, so I assume that either xxxxx or xxxxx had mentioned this to him. He told me he would mention it to you in the meeting that I thought I should be allowed to do Merit 5 earlier, as Merit 4 should have been taken earlier, but thought that he couldn’t see it happening and he didn’t think xxxxx xxxxx would sign it off anyway. I then spoke to xxxxx on Sunday night, and she advised me to give you the facts before the meeting.

Monopoly23. 01/07/07

I have since received a response from my dgm. He says that he has conulted with Human Resources about my queries, and the one salient point is that I broke service and my new contract started 4th October. He also says that the earliest a new employee can take a merit test is after 6 months. Because of this, the earliest possible date I could have taken Merit 4 was 4th April, but as I was absent from work, in accordance with how other employees are treated, the earlist possible date I could have taken it was the date I returned - 29th June.

This does not agree with the Sex Discrimination Act in my opinion. If all employees are treated the same, it is still discriminatory towards women, as they are more likely to be off through Maternity for long periods of time.

A male employee could be off on the day he was due to take his merit, but that wouldnt stop him from doing it the next week when he returned.

 

I need to know where I stand now with this and if there are any other arguements I could use in my favour.

I already know of one new starter that is taking his merit after only 3 months with the company, so this already defies what the gm has told me.

 

Sorry for such a long winded post but I wanted to try and explain things as clearly as possible.

[GlasweJen]

sounds like your general manager is a prat! submit a formal grievance and take it from there, are you still in time for a tribunal?

[monopoly23]

Hi, thanks for your reply.

 

I think I'd be in time as I only found out they were in the wrong in June.

The dgm is a prat but the gm is pretty ok and straight down the line. I just don't hink he's very good with these particular laws. The thing that bothered me though was the fact he mentioned that he'd spoken to HR and they agree with what he's now told me.

 

He mentions the Company Merit Standards, which say you can only take the test after 6 months of employment, yet there is nothing about this in the staff handbook, I don't think it's mebtioned in my contract plust the fact that there's a new employee taking their merit after only 3 months.

 

The letter that I gave to him was the formal grievance, but I'm planning on writing back when he returns from hoilday to mention all these points.

I just wondered if there was anything else I could bring up.

[OrangePrimate]

2 things that spring to mind:-

1)

I dont think you actually 'left' the company and restarted!

if you hand in notice and 'rescind' or withdraw that notice before the 'leaving' date, you havent actually left! even if you take time out using up holiday due. So there would have been no need to sign a new contract or be classed as a 'new starter', it would have come under 'continuity of service'

2)

Did you get paid maternity while you where off and guaranteed a place back at work at the end of your maternity period? The reason I ask this is you have to have worked for a company for a minimum of 12 weeks to be covered under the maternity legislation i.e maternity pay, return to work, ect ect.

 

If the answer is yes, then the company are treating you as a long term employee entitled under the employment legislation to maternity rights. They cant do that on one hand and instist you are a 'new starter' on the other - also contracts change and get signed all the time during an employment history, so signing a new contract doesnt neccessarily mean much unless there was some radical changes in it!

 

edit: dont worry too much about him talking to HR and believing they may have got it right!!

HR depts often know a lot less than they make out. especially if anything like our HR dept that thinks that only those registered as disabled and a blue badge holder is covered under DDA - Disability Discrimination Act (that all changed Oct 05!!)

[monopoly23]

Hi.

I didn't withdraw my notice and I actually did leave for three days - the Sunday, Monday and Tuesday of the week after my holiday ended.

 

To get work to pay Maternity you have to be working there in the 15th week before your estimated week of confinement which was the week I left. Because of this I got no Maternity pay from work and I had to apply for Maternity Allowance which I got.

 

The only point of all this that I'm fighting is the fact that I was told I'd be able to take my next Merit in December hen my probation was over but when it got to it, I wasn't allowed.

There is no mention of new starters having to wait 6 months to take the test either in my contract or in the staff handbook.

Plus the fact that there is loads of people coming over from similar businesses that take their merits after just 12 weeks.

 

I need to know if that is enough to show discrimination against me.

[GlasweJen]

Unfortunately I'm not sure if it is enough, you should take everything you have related to this and speak to someone at citizens advice, they should be able to point you in the direction of a lawyer for some legal advice.