This is a question that we received at Direct 2 Lawyers over the weekend from a “D2L user”. It’s fairly typical as far as the questions we receive and we’ll therefore address it in our “Help” section today. We’ll analyse the question by addressing the following questions:
- What are the issues that the D2L user is facing?
- What potential claims might the D2L user have?
- What should the D2L user do?
What are the issues that the D2L user is facing?
The main issue that the D2L user is facing is that they’re not currently being promoted and the most important question here is “why?” – why is the D2L user not being promoted beyond their current position when (we’re assuming) comparable colleagues are? There could be many answers to this*:
- The D2L user isn’t actually comparable to the people being promoted (i.e. they’re less specialised or less experienced etc. and unsuited to be promoted at this time) – probably lawful
- The D2L user is experiencing personal problems with other workers at his employer and this is stopping him being promoted – probably lawful
- The D2L user is not being promoted because they are being discriminated against because of their protected characteristic (their age, race, disability, sex etc.) – unlawful
If the reason that the D2L user isn’t being promoted is option 3 then this may be a case of unlawful discrimination against them.
What potential claims might the D2L user have?
- Discrimination at work
- Constructive dismissal (if they were to resign as a result of the failure to promote and/or discrimination)
The most obvious claim that the D2L user would have is a claim for discrimination under the Equality Act 2010. This would probably be a claim for direct discrimination under s.13 of the Equality Act – that the D2L user is being treated less favourably than comparable employees because of his or her protected characteristic. The important element to prove here would be causation – whether the D2L user had been treated less favourably (the failure to promote) because of the fact that they were, for example, black or Muslim or female (or even all three of these things).
The D2L user may also have a claim for constructive dismissal if they were to resign from their employment because of the fact that their employer breached (in this circumstances) the implied term of mutual trust and confidence.
What should the D2L user do?
The D2L user could try and ascertain why they’re being treated the way they are. There’s no evidence to suggest – at the moment – that the reason for their “detriment” is discrimination so it would be ineffectual to claim discrimination in the Employment Tribunal or resign and claim constructive dismissal.
*Please note that there are mainly potential answers to this question and the above is not an exhaustive list
Direct 2 Lawyers offers advice from specialist employment lawyers to employers and employees