Starting grievance procedure help needed

[gemma2701]

I am looking at starting grievance procedures at my work due to discrimination but just wanted some advice as to what discrimination is it and how strong my case is?

 

I have been at the company 6 years now and have always worked flexible since starting (4 long days 7:30-6 in the office and on 5th day at home although still doing work on laptop etc but a lighter touch, contracted hours 35 hours full time and do 40 hours plus every week) I had 1 child when I started there (now 6) and have had 2 children whilst working there (4,1) I had maternity leave for both but only 3 months each.

 

I feel due to my flexible working I am overlook for pay increases, fair comparable bonuses and promotions and here is why.

 

When I started standard bonus % for the level I was at was 12.5% but I got them to agree to 15%. At the end of 1st year even though on same salary as colleague with 12.5% bonus we received the same bonus( my performance was rated 4 this year, higher than expected so no reason to receive same bonus as someone on a lower percentage than me)

 

Following year when at salary review bonus time my boss informed me that I would receive 100% of my bonus entitlement but the amount he came out with was only 69% of my entitlement (I was on maternity leave for 3 months of the year previous that the bonus related to and he had incorrectly work out the deduction for this ) he also said I would not be getting a pay review as had received one the year previous. I complained about this but he said there was no further action I could take

 

Following this he accidently (what a fool) cc'd me on an email to his boss saying that I wanted to see him as I was unhappy with my bonus calculation and that I failed to appreciate the benefit I get from flexible working compared to my peers and colleagues. When I confronted him about this (he was sweating) but said that flexible working is part of my benefit that others do not get and this needs to be taken into account as part of my package (I still work full time and consistently receive higher than average reviews)

 

In February this year a promotion opportunity came up with another area of the business which I was basically doing a similar role in my current position so decided to go for it as my current role and package was below market value for the tasks and my skill set. I had an interview set up with the CFO for the new role and had to cancel the day before due to my 3 year old being taken in to hospital with an infection. Whilst I was rescheduling the interview with Hr they asked me, "this is a full time position is that an issue?" I replied "no as I currently work full time but I do work flexibly is that an issue?" They informed me (although this role was based between 2 locations splitting each week between the 2) that i would not be able to continue my flexible hours in this role. I emailed the CFO and said how I could make the flexible hours work that I consistently delivered in my current role (that was very similar) and recieved 4's in my yearly reviews and flexibility works both ways so can be available in evenings,weekends, Fridays when needed and I could deliver the role 125%. He replied 2 weeks later saying that they didn't need to interview me as they had found another candidate, and although my flexibility was an issue it was not the deciding factor. How can they say this when they didn't even interview me and I had an interview set up prior to them finding out about flexible hours?

 

March this year salary review and bonus time. Received an overachieved objectives level 4 again but no salary review and only 87% of my bonus. Again my boss told me my flexible working is my benefit!

 

Another promotion pop comes up in April and I go for it. I get down to final 2 against a lady who has the same role as me in the same dept currently ( but she is full time) our boss says to her whoever doesn't get the promotion does not need to worry as he will make this a win win situation so whoever gets left behind will not lose out. He will not replace the leaver instead he will increase level and package of role of person left making them his deputy. I didn't get the promotion but my boss just said to me let's see what happens in 6 months time and nothing will be done now! I believe it would have only been win win if the other candidate didn't get the role and stayed behind but the same does not go for me due to my flexible working.

 

I have handed my notice in due to this as fed up of being overlooked even though I still work the same hours as everyone else and delivered above targets set for me

[GrahamMcLean]

I am looking at starting grievance procedures at my work due to discrimination but just wanted some advice as to what discrimination is it and how strong my case is?

 

I have been at the company 6 years now and have always worked flexible since starting (4 long days 7:30-6 in the office and on 5th day at home although still doing work on laptop etc but a lighter touch, contracted hours 35 hours full time and do 40 hours plus every week) I had 1 child when I started there (now 6) and have had 2 children whilst working there (4,1) I had maternity leave for both but only 3 months each.

 

I feel due to my flexible working I am overlook for pay increases, fair comparable bonuses and promotions and here is why.

 

When I started standard bonus % for the level I was at was 12.5% but I got them to agree to 15%. At the end of 1st year even though on same salary as colleague with 12.5% bonus we received the same bonus( my performance was rated 4 this year, higher than expected so no reason to receive same bonus as someone on a lower percentage than me)

 

Following year when at salary review bonus time my boss informed me that I would receive 100% of my bonus entitlement but the amount he came out with was only 69% of my entitlement (I was on maternity leave for 3 months of the year previous that the bonus related to and he had incorrectly work out the deduction for this ) he also said I would not be getting a pay review as had received one the year previous. I complained about this but he said there was no further action I could take

 

Following this he accidently (what a fool) cc'd me on an email to his boss saying that I wanted to see him as I was unhappy with my bonus calculation and that I failed to appreciate the benefit I get from flexible working compared to my peers and colleagues. When I confronted him about this (he was sweating) but said that flexible working is part of my benefit that others do not get and this needs to be taken into account as part of my package (I still work full time and consistently receive higher than average reviews)

 

In February this year a promotion opportunity came up with another area of the business which I was basically doing a similar role in my current position so decided to go for it as my current role and package was below market value for the tasks and my skill set. I had an interview set up with the CFO for the new role and had to cancel the day before due to my 3 year old being taken in to hospital with an infection. Whilst I was rescheduling the interview with Hr they asked me, "this is a full time position is that an issue?" I replied "no as I currently work full time but I do work flexibly is that an issue?" They informed me (although this role was based between 2 locations splitting each week between the 2) that i would not be able to continue my flexible hours in this role. I emailed the CFO and said how I could make the flexible hours work that I consistently delivered in my current role (that was very similar) and recieved 4's in my yearly reviews and flexibility works both ways so can be available in evenings,weekends, Fridays when needed and I could deliver the role 125%. He replied 2 weeks later saying that they didn't need to interview me as they had found another candidate, and although my flexibility was an issue it was not the deciding factor. How can they say this when they didn't even interview me and I had an interview set up prior to them finding out about flexible hours?

 

March this year salary review and bonus time. Received an overachieved objectives level 4 again but no salary review and only 87% of my bonus. Again my boss told me my flexible working is my benefit!

 

Another promotion pop comes up in April and I go for it. I get down to final 2 against a lady who has the same role as me in the same dept currently ( but she is full time) our boss says to her whoever doesn't get the promotion does not need to worry as he will make this a win win situation so whoever gets left behind will not lose out. He will not replace the leaver instead he will increase level and package of role of person left making them his deputy. I didn't get the promotion but my boss just said to me let's see what happens in 6 months time and nothing will be done now! I believe it would have only been win win if the other candidate didn't get the role and stayed behind but the same does not go for me due to my flexible working.

 

I have handed my notice in due to this as fed up of being overlooked even though I still work the same hours as everyone else and delivered above targets set for me

 

 

Forgive me here, But as I read it you have applied for different positions within the same company. You want to be able to continue with the system of working flexi time and not change your position to fit the role being offered.

 

The people who did get the jobs were willing to do the hours the company was asking.

 

I really don't see where you would find the greviance. If you really wanted the roles and additional wages/bonuses, It would be advisable to be prepared to be more flexible yourself. The employer dictates to you what and when you work, You cannot start saying oh but I could do it another way.

[gemma2701]

Promotion is just part of the issue. I've also not received correct salary and bonuses due to working flexibly. I still work 40 hour week and this is discrimination against me for being a working mother

[GrahamMcLean]

The bonus system sounds very complicated so cannot comment on that. It looks from your post, wages are something personally arranged between you and the company based on each employees merits. You mention when you first started you negotiated a higher starting wage than other employees. Stick the boot on the other foot, at that point did you consider they were being discriminated against?

 

While I'm sure you are confident you should earn much more than you do (don't we all) perhaps higher management don't see it that way.

 

I genuinely cannot see what discrimination you have received. It is highly likely the succesful applicants of the jobs either were better suited or interviewed better.

[gemma2701]

Not a higher salary I negotiated a higher bonus %

 

So I should be treated differently as I have to work flexibly for personal reasons even though I still work same hours as other staff and consistently receive performance reviews exceeding expectations

 

I'm not after someone's opinion, I would like an experts advice on this as looking at your prior posts you seem to have negative views about hiring pregnant women/flexible workers.

[becky2585]

How is the bonus calculated?

[SabreSheep]

The right to flexible working (PLEASE NOTE THIS RIGHT GETS EXTENDED 30th JUNE 2014 so OPs arrangments will be Pre 2014 rules)

 

https://www.gov.uk/flexible-working/overview

 

If you are a parent or carer then your flexable working would be protected in law. To be held at a disadvanatge because you have used a statutory regulation would not be discrimination on this grounds but instead Victimisation. IF it is what I called a Statutory Declaeration for flexable working based on being a parent or career there is scope for discrimination on the grounds of gender and/or disability.

 

HOWEVER

 

It might be difficult to prove that this was the reason for not being promoted.

 

You would need to seek full legal advice on this one .

 

AS for Grahams "Employer will dictate when and where you work" They must do so whilst complying within the law without discrimination or victimisation. Direct OR Otherwise.

[GrahamMcLean]

I think you misunderstand me sabre sheep. As I read it the employer isn't victimising Gemma as she is being allowed to continue her current role and getting the hours she wants.

 

These other roles may well of required gemma to be on site all 5 days. Not working at home. Likewise in her current role her employer may feel he/she would benefit from gemma being on site all 5 days which is why she is not getting as much bonus as she would like.

 

But getting back to my earlier point. Gemma, when you were getting the higher rate bonus than others doing the same job. At any point did you feel they were being discriminated against? If not then that is being hypocritical when expecting other staff members who may actually be more cost effective to the company are getting a higher bonus now.

[SabreSheep]

If the sole reason she was not granted promotion on the basis is her using a statutory procedure to gain flexible working then that *IS* Victimisation. If the flexable working is in responce (but at this time we do not know) to personal issues such as childcare, or being an official carer for osmeoene then it *IS* indirect discrimination on grounds of sex OR Disability

[Brenty]

Forgive me OP, but your whole attitude seems to be a bit 'sour grapes'? Along the lines of (from what you've written only)

'I requested flexible working' (it was granted).

 

'I requested a bigger bonus than my full time work colleagues' (it was granted).

 

'But now they won't promote me because I spend time working at home and cry foul at the smallest perceived slight.' (Company says we've reasonably tried to accomodate your requests so far and we're sorry you didn't get the promotion but we need someone committed and physically here when WE need them because we're running a business and not Mumsnet?)

 

'I'm not happy I didn't get a promotion even though there may have been better candidates, therefore I'm looking to play the 'discrimination card'.

 

Fair assessment?

[SabreSheep]

Excuse me?

This is a self help forum where people come to ask for help and where *WE* do so without judging..

Stick to factual information and not moral judgements please

 

Forgive me OP, but your whole attitude seems to be a bit 'sour grapes'? Along the lines of (from what you've written only)

'I requested flexible working' (it was granted).

 

'I requested a bigger bonus than my full time work colleagues' (it was granted).

 

'But now they won't promote me because I spend time working at home and cry foul at the smallest perceived slight.' (Company says we've reasonably tried to accomodate your requests so far and we're sorry you didn't get the promotion but we need someone committed and physically here when WE need them because we're running a business and not Mumsnet?)

 

'I'm not happy I didn't get a promotion even though there may have been better candidates, therefore I'm looking to play the 'discrimination card'.

 

Fair assessment?

[Brenty]

OK sorry, I'm new here so forgive me. But what did I write that wasn't factual, SabreSheep?

[Pusillanimous]

Gemma, have a chat with a local employment lawyer or community law centre, to explore whether you have a legal case.

[steampowered]

It doesn't sound like your employer has communicated with you properly. But I'm not sure you would have a viable legal claim. This is because I don't think the employer has a legal obligation to make the new position a flexible working position and is entitled to take your requirement for flexible working into account when deciding which candidate to choose. It also sounds like there were other good candidates so it would be difficult to prove that any of this was the reason why you weren't chosen.

 

 

I don't quite understand the bonus issue. However, if the employer agreed to pay you a 15% bonus as part of your remuneration package, then that would normally form part of your employment contract and is what you should receive.

 

 

Before resigning I'd at least give them a chance to sort it out.

[SabreSheep]

It doesn't sound like your employer has communicated with you properly. But I'm not sure you would have a viable legal claim. This is because I don't think the employer has a legal obligation to make the new position a flexible working position and is entitled to take your requirement for flexible working into account when deciding which candidate to choose. It also sounds like there were other good candidates so it would be difficult to prove that any of this was the reason why you weren't chosen.

 

Any rights you might have would depend on why you had flexable working. If for careing responceabilities or childcare then you might have a case. This is because a prmotion is a job appointment and you can not be unlawfully discriminated against directly or undirectly due to gender or disability. Disability discrimination is indirect but still valid in the event of you being a carer for oosmoene that is and you are disadvantaged because of it.

If there were other good candidates your position is difficult. You would have to prove the "But For" test in that you would of been employed/promoted but for your flexible working which was due to you being a carer or childcare issues. (Again this depends on the reason for your flexible working)

 

 

I don't quite understand the bonus issue. However, if the employer agreed to pay you a 15% bonus as part of your remuneration package, then that would normally form part of your employment contract and is what you should receive.

 

 

Before resigning I'd at least give them a chance to sort it out.

 

Again unless you have a solid case to prove a fault under the equality act you would need to follow the procedures before walking out.

[steampowered]

Any rights you might have would depend on why you had flexable working. If for careing responceabilities or childcare then you might have a case. This is because a prmotion is a job appointment and you can not be unlawfully discriminated against directly or undirectly due to gender or disability. Disability discrimination is indirect but still valid in the event of you being a carer for oosmoene that is and you are disadvantaged because of it.

The meaning of 'disability' under the Equality Act is very tightly defined. To be classified disabled you must have 'substantial and long-term adverse effect on his ability to carry out normal day-to-day activities', day-to-day activities being things like reading, getting dressed or using transport. I don't think the op fits in this category. I guess discrimination against people on flexible working arrangements could be seen as indirect gender discrimination, but a difficult case to make legally.

[SabreSheep]

The meaning of 'disability' under the Equality Act is very tightly defined. To be classified disabled you must have 'substantial and long-term adverse effect on his ability to carry out normal day-to-day activities', day-to-day activities being things like reading, getting dressed or using transport. I don't think the op fits in this category. I guess discrimination against people on flexible working arrangements could be seen as indirect gender discrimination, but a difficult case to make legally.

 

 

http://www.rethink.org/living-with-mental-illness/mental-health-laws/discrimination/carers

 

Its all suppossition really. But if she was careing for someone that was classed as disabled and that was the basis of the flexible working then the above would still apply. The link to the disabled person being that they are an offical carer.

[SabreSheep]

"Example James is a carer for a man who has schizophrenia. James applies for a job and he tells them that he is a carer. The employer does not give James the job and another person, who is equally as qualified as James, gets the job instead. When James asks for reasons, the employer says that his caring responsibilities would have got in the way of work. This is direct discrimination by association with a disabled person."

[gemma2701]

Thanks for advice sabresheep, very appreciated. I work flexibly as I have childcare responsibilities and as work in the city and travel. 3hrs a day for work cannot do drop offs pickups and no one else to do on a Friday.

 

For those discriminators out there I have received legal advice and they have adviced me I have a very good case (i have an email from my boss stating I don't get salary reviews and bonuses others do as I work the same hours as them but in a different pattern- discrimination) I work my ass off for this company and I'm the best they have but as I work flexibly I am not treated as fairly this is discrimination FACT, I'm not playing any "cards" just facts.

 

Here's some more facts for you. senior managers (of which I'm one) at my work based in London, 12% women 88% men! average salary for women at this level is 21% lower then the men and bonus is 47% lower. Still think discrimination isn't taking place or do we believe that even though I work harder and get better results then my male colleagues I should get less than them as I work a different shift pattern to them? You can be in the office 70 hours a week and still not get results, this is what matters. Attitudes need to change.

[Atlas01]

Did you earn less in bonus per hour worked when put against men doing work of an equal or like value, forget the other jobs, only a barrister could steer you through that minefield and there ain't any here.

 

e.g you got 15% hr and they got 20% because that is the only thing i see here with any potential, even then an internet forum won't get you through an equal pay claim, you need legal (and good) advice

 

as you already have already been told you have a good case by a solicitor then you should make you decision from what they told you

 

This isn't the type of case you can run on your own

[Brenty]

Agree. Atlas01. But new laws came into force today where anyone (not just women or carers) can ask for flexible working in a 6 month period, unless the boss can find a good reason for the company to deny it. I don't know if this will help the OP case, but it sure goes a long way to level the playing field for most of us hating our jobs yet having to work 9-5, but hitherto didn't have an easy 'discrimation card' to play.

[SabreSheep]

Agree. Atlas01. But new laws came into force today where anyone (not just women or carers) can ask for flexible working in a 6 month period, unless the boss can find a good reason for the company to deny it. I don't know if this will help the OP case, but it sure goes a long way to level the playing field for most of us hating our jobs yet having to work 9-5, but hitherto didn't have an easy 'discrimation card' to play.

 

 

I do not think the majority find using the "discrimination card" easy

That phrase implies a very narrow minded viewpoint. Ask anyone that has a disability if being treated on a fiar and level playing field was "easy"

Ask the ladies that are discriminated against on a daily basis about sex discrimination.

Attitudes such as "Playing the race card or playing the easy discrimination card" are why the equality act exists in the first place.

[Brenty]

True. But playing that 'card' is the last recourse of someone who doesn't have a case?

[GrahamMcLean]

Have to say my opinions are similar to the ones brenty has put.

 

The OP has managed to find a solicitor over the weekend period specialising in Employment law that has said she has an excellent case. Now whether we believe she has or has not is neither here nor there.

 

What it does do is highlight how cases like this are going to end up costing working mothers and others claiming flexi-time.

 

What I see here is a company that seems to be looking after its staff pretty well. But despite getting pretty well treated in a very tough economic environment you get an employee wanting another bite at the cherry.

 

Employers will talk amongst themselves and are likely going to come to the conclusion, incorrectly in most cases, that working mothers are going to be more bother than they are worth.