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Lex

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  1. 10 Tips for returning from maternity leave by Nicola Welchman You are a highly respected professional – you are trusted by the directors; you have recruited a fantastic team; you achieved all your KPIs for the last 5 years and you were on target for a bonus to be paid at 120% of target. You’re tipped for a promotion. All is good. The pregnancy was a bit of a shock. Welcome, but a shock. When you told your boss, he needed a moment before he congratulated you. You worked until 39 weeks pregnant – you worked the same crazy hours as before bump. You were always late for your mid-wife appointments as you rushed from the office. The baby wasn’t going to change a thing. Your maternity cover was going to do just fine – particularly with your handover notes that would take her through to Q2. 9 months later…. Hi John I hope you have had a great summer. I emailed you a few months back but I guess you might have missed the message. As you know I am due back next month, just wanted to arrange for a call to confirm. Looking forward to getting back to work… Best *** “Dear Nina Thank for your email, I hope that you and the baby are well. You will be aware that there have been some changes over the course of the last 9 months. I suggest that we arrange for you to come into the office for a meeting. Our HR Director, Mary Simmons will be in attendance. You are entitled to bring a work place colleague or trade union rep…..” *** Whaaaaat… ? You’re good friends… he came to your wedding…. This is a familiar story to me – I suppose that I only hear about those with a fallout. The employee with supportive employers celebrating her return rarely will need to seek legal advice. As an employment lawyer who specialises in discrimination claims I have witnessed some shocking situations. I love meeting new babies, but meeting a two week old because her mum has just been sacked isn’t the best introduction. As a mother returning from maternity leave, a ‘returner’ you have rights to come back to your existing job (if you return following your ordinary maternity leave) and to a no less favourable job if you return following your additional maternity leave. If a redundancy situation occurs you should have the protection of being offered a suitable role, but often the situation is manipulated so that there isn’t one… “there is now a significant travel element to the role which will mean travelling to the offices in New York and Newquay up to three times a month….” The other common situation is that your maternity cover is preferred. “Edwardo is such a great talent and flexible (read no kids) – you were right to promote him. The thing is he talked about leaving, so we offered him a permanent role and more money.” (Yup, your job and more money than we paid you). Those situations may give rise to a claim in the employment tribunal for discrimination. The problem is often the difficulty in proving that something unlawful happened and, to cap it all, you need to move fast – the time limit gives you three months less one day to take formal action – and that time limit runs from the date of the decision, not when you were told about it months later (although judges get to exercise their discretion if it’s fair to both sides.) You can’t prevent any of this from happening but often being forearmed will mean that you are forewarned. Here are my survival tips: Before maternity leave, discuss how you would like to be kept in the loop during your time away. Keep close to someone on the inside track – this way you may be first to know about any restructures; Use your keep-in-touch days; If you think that you have been subjected to discriminatory treatment, seek legal advice as soon as possible as a strict three month time limit applies If the worst scenario happens, do you want to go back? If you don’t, do you have to pay back your maternity pay? Is the relationship salvageable? You may be hurt when trusted colleagues let you down but accepting their failures may be the best way to get back in the workplace; Negotiate an exit – a specialist employment lawyer can take the lead on the negotiations for you to ensure that the amount you are offered is maximised and that the terms offered are fair and do not disadvantage you; Linked to this, do you want another baby soonish? It is important – you need to be in your job for around 9 months before the baby is due to be eligible for SMP and often longer if your employer offered enhanced maternity benefits. You also won’t have the right to make a flexible working request until you have been employed for 6 months. Be realistic about your flexible working request – informally map out a proposal and run it by your boss and don’t ask for what you won’t get – 2 days in the office: 2 at home won’t work if you have a client facing role; offer solutions to avoid employer’s anxieties; Keep some holiday back for when you have an inevitable child care crisis – your kids will be sick A LOT during their first winter in childcare Remember that your partner will have parental leave rights too – shared parental leave, time off for dependents, flexible working requests are not an exclusive female/ birth parent domain. If you find yourself in a situation like this and don’t know whether your employer’s proposals are lawful, or what you should do next, then get in touch with Monaco Solicitors – we may well be able to help.
  2. Discrimination claims can be difficult to prove as there is normally no written evidence and of course, the perpetrators are likely to deny all knowledge. However if you can prove that you have been put at a disadvantage because of discrimination, then you may be able successfully to negotiate a settlement agreement, or to make an employment tribunal claim. The Employment Tribunal Services publish regular statistics that tell you how difficult discrimination at work claims are to win. What those statistics don’t tell you is that in reality discrimination cases are usually agreed through an out-of-court settlement rather than won in court. Establishing discrimination to the tribunal’s satisfaction may be difficult but that doesn’t mean that discrimination within the workplace doesn’t exist – it most certainly does! Some employers will often see the considerable benefit of settling any potential claim long before it gets to the tribunal but others will deny and, at times even lie, to avoid dealing with the uncomfortable truth that they employ managers who engage in unlawful and discriminatory conduct. Who can be discriminated against? Under the Equality Act 2010, discrimination may apply to individuals who have one or more of what are called ‘protected characteristics’, as follows: Age: a person of a particular age or belonging to an age range – for example: people of 18-30 years, or employees over the age of 55. Disability: a person has a disability if she or he has a physical or mental impairment which has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities. Gender reassignment: a person who is transitioning or has transitioned from one gender to another. Marriage and civil partnership: the legal union between a man and woman or between a same sex couple. Pregnancy and maternity: pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth, and is linked to maternity leave in the employment context. Race: refers to the protected characteristic of race. It refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins. Religion or belief: religion has the meaning usually given to it, but belief includes religious and philosophical beliefs including lack of belief (such as Atheism). Generally, a belief should affect your life choices or the way you live, for it to be included in the definition. Sex: a man or a woman. Sexual orientation: whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. Types of Discrimination Direct Discrimination This is when you are treated differently and badly, or worse than others, because of age, sex, race, sexual orientation (or other protected characteristic – see above) Unfortunately, not all unfair treatment will be unlawful discrimination under the Equality Act 2010. The reason why you are being treated differently – or less favourably – is important. And in order to prove discrimination, you must show that it is because of a protected characteristic. In reality, this is difficult. Few people who discriminate do it explicitly. In rare cases, we see an employer who might reveal their hand by saying or doing something which would amount to direct discrimination. Most often it is difficult to get to the truth, and a long road of grievances and potentially tribunal proceedings may be the only option to uncover the discriminatory conduct. Examples: 1. Direct Race Discrimination The arrival of a new CEO. As soon as he starts expresses the wish to employ people of the same national origin as himself, makes comments about others being workshy, and staff start to find they are put on performance improvement plans 2. Direct Sex Discrimination A woman is interviewed for a new role and is asked if she plans to have children soon. She says she does, and does not get the job. 3. Direct Religious Discrimination Refusing to employ a woman because she wishes to wear an hijab. Indirect Discrimination This is when an employer treats everyone the same but the effect of the treatment subjects you to a disadvantage because of your protected characteristic. For example: 1. Indirect Sex Discrimination An employer which has a policy that requires all staff to work full time is likely to place a woman who has primary child care responsibilities at a disadvantage compares to a male colleague. 2. Indirect Religious Discrimination An employer who insists that all staff must work on a Sunday may cause a disadvantage to someone whose religious observances requires them to refrain from work on a Sunday. Employers have a defence if they can show there is an objective justification for the requirement. It is complicated stuff, the appeals courts have to give regular guidance on the principles of objective justification. Harassment This is when there is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Victimisation This is when you are treated badly because you have made a ‘protected act‘ (or because it is believed that you have done or are going to do a protected act). A protected act is making a complaint of discrimination or offering assistance to someone else in their discrimination claim. So victimisation is essentially retaliation for complaining about discrimination. Time limits in discrimination at work claims On the plus side, there is no minimum period of employment before you can make a claim in the employment tribunal for discrimination. Unlike unfair dismissal, you do not have to wait two years before you have the right to bring a claim. Your rights not to be subjected to less favourable treatment began on the first day of your employment. For example, you could claim because you were denied an interview because of a protected characteristic. The rules on time limits for making a tribunal claim for discrimination are complicated, and as a rule of thumb, you only have three months to commence an employment tribunal claim for discrimination. This will start with notifying ACAS through the Early Notification Form . The clock starts ticking after the discriminatory incident or course of events in question (unless you can show it was reasonable in all the circumstances to wait). If you miss the time limit, the tribunal can reject your claim, unless they decide that it is “just and equitable” to accept it. You need a really good reason for waiting more than three months For this reason, your employer will be less likely to offer you a decent settlement agreement if you have missed the deadline. Employers will often try to string out any grievance procedure to take you over the 3 month time limit for issuing a claim! Discrimination settlements – how much money should I get? If you want to understand a bit more about how much to ask for in your discrimination agreement, it’s necessary to put it into context by considering how a discrimination claim would be dealt with in an employment tribunal. Why? Because most employers will ask their lawyers the question ‘if this went to tribunal what would happen?’ They would then base any settlement agreement offer on their lawyer’s answer. Note that the very large payouts that get reported in the media are often due to financial loss because the discrimination meant that the individual could not work again. These are extremely rare cases and should not be taken as in any way likely to apply to you. If, for example, you were earning £40,000 per year, and you are 65 years old, you might be able to claim 5 years’ salary totalling £200,000, IF you can show that you are unlikely to find another job. Or if the discrimination really set you back psychologically, and you have medical evidence to support this, you may be able to claim for years’ worth of compensation. We wouldn’t want you to think, just because you read about very large payouts, that the same always applies to discrimination claims: it doesn’t. Discrimination tribunal claims have three elements: 1. Financial loss is based on the same principles as for unfair dismissal, although it is theoretically unlimited rather than being capped at £86,444 (October 2019), which is the limit for normal unfair dismissal claims in the tribunals. In practice this is limited to the amount of money you lost whilst out of work – so if you got another job straight away on the same or more money, then you have suffered no financial loss. 2. Injury to feelings is always payable to claimants in successful discrimination cases. Guidelines on the amounts of compensation were set out by the Court of Appeal in the ‘Vento vs Chief Constable of W. Yorkshire Police’ case back in 2002. These have since been updated (in April 2019) and are currently as follows: Band 1: £900 – £8,800 [one off or isolated incident – this is the most common award by far]; Band 2: £8,800 – £26,300 [more serious discrimination]; and Band 3: £26,300 – £44,000 [sustained campaign of the most serious discrimination – rare]. 3. Personal injury compensation is theoretically unlimited but in practice it’s tightly pegged to the type of injury caused, and its very difficult to prove, so please don’t assume that you’ll get anything for this. It’s based on the same principles as for say a car accident, although the kinds of injuries most common in discrimination employment matters are psychological injuries such as depression and similar disorders. Medical evidence is necessary here, and you have to show somehow that the employer’s conduct was the only cause of your condition, and that they should have known that their actions could lead to injuring you. Negotiating in discrimination at work cases Being discriminated against, i.e. being treated less favourably or harassed because of a ‘protected characteristic’, as outlined above, is one of the most serious claims to be made at an employment tribunal. It is taken very seriously by a judge and by society at large. Discrimination claims can be valuable, but also delicate and complicated, so any negotiations must be conducted carefully in order to have any chance of success. Some key points in negotiating a settlement agreement for discrimination at work The first thing we would say is that it’s important for you to have got your facts and allegations exactly right. You need to know what you are claiming and why and how to prove it. Sometimes, this will not be readily apparent; therefore, you need to find out more information from your employer. This is where the ‘questions procedure’ (previously known as ‘discrimination questionnaires’) under the Equality Act 2010 comes in. It is a formal, statutory procedure that you can use to ask questions about your employer and your employer must answer or ‘adverse inferences’ may be drawn. Adverse inferences means that any judge would be entitled to find that the employer was up to no good. You can download a detailed document on the questions procedure, including a questioner’s template, from the ACAS website. Commencing the questions procedure is a good negotiating tactic, as once your employer has a copy of your questions, they know that you mean business and that you have fair technical knowledge, which means that you might be able to win any tribunal claim. It is sometimes a good idea to start the questions procedure and then commence without prejudice negotiations at the same time as this allows your employer not to investigate the questions and therefore to keep the issues confidential. If you simply want answers from the questions procedure, or want to wait tactically for the answers as you believe this will put you in a stronger position, then wait for your employer to answer the questions and then use the answers, or the lack of answers, as the basis for writing your without prejudice letter. Remember, be strong, but professional in tone and do not make wild allegations that are unsupported by facts. See also our without prejudice letter templates for examples of without prejudice letters used in real life cases. Make a claim while you are still in employment With discrimination claims, if you’re still employed then you can make a claim while your employment continues. This is a good negotiation tactic too, as it puts huge pressure on your employer: one of its employees is suing it and they remain in the company! The first instinct is to get rid of that employee, but they can’t without victimising them and thus increasing their likelihood of having to pay compensation. This is the perfect time for you to write a without prejudice letter and offer settlement and termination in return for a good settlement package. Discrimination at work claims can damage an employer’s reputation and business Remember, being accused of, or found culpable of, discrimination is worrying for an employer. It leads to a bad reputation and the possibility of further claims. If, using evidence and your knowledge of the law, you can show to your employer in correspondence that you have a case that has prospects of success in an employment tribunal, then your employer will probably want to settle the case. What to do if discrimination at work negotiations become deadlocked If negotiations become deadlocked when negotiating in a discrimination case, now is a good time to submit a grievance, a subject access request, and/or a questions procedure. If all of those have failed to secure the outcome you wanted, issue a claim in the employment tribunal or commence ACAS pre-claim conciliation. It will show your employer that you are serious and often leads to an improved offer. If you previously decided not to instruct a lawyer, now may be the time to consider instructing one if a deadlock is reached. To sum up: factors to consider Was this a one off event or has this been going on for months or years? Has anyone witnessed it? Have you complained about the treatment or requested that it should stop? When did it happen? Next steps We often find that our Clients are able to identify that they have been subjected to long-term and often sustained detrimental treatment. Often they don’t know why but believe that it may have been because of a protected characteristic. We can help you identify the claims that might have, advise you on time limits and vicarious liability and also discuss the best strategy. Could Lex help? If you need further advice and assistance with your employment matter, Lex may be able to help. Just get in touch here.
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