This post takes a look at what rights an employee or a worker can exercise if their employer has failed to promote them. Under the Equality Act 2010 a failure to promote for discriminatory reasons (for example, they refuse to promote you because you’re a new mother or because you’re Polish) is unlawful. However, although you may regard the failure to promote you as unfair you will need to be able to demonstrate that there is a potentially discriminatory reason for this failure. This will involve a consideration of whether you should have been promoted and, if so, whether there is any other reason for failing to promote you

  1. Why do you think you should be promoted?
  2. Is the failure to promote discriminatory or for some other reason than discrimination?
  3. If the failure to promote is because of discrimination, what type of discrimination applies?
  4. Think about whether there is some other reason
  5. If you don’t think another reason applies, consider whether the failure to promote you is because of discrimination
  6. Is it worth issuing a failure to promote discrimination claim?
  7. Will there be any consequences for me if I make a failure to promote discrimination claim?
  8. What other claims might I be able to make in the Employment Tribunal?
  9. Will I be able to instruct a no win no fee employment lawyer to take my failure to promote discrimination case on?

Why do you think you should be promoted?

The first question to ask yourself is why you think that you should be promoted. Any credible claim for discrimination will be premised upon the fact that you should have been promoted and that the reason that you weren’t was because of your protected characteristic (your age or race etc.). If you didn’t have a hope of being promoted anyway your failure to promote discrimination claim is non-existent.

You should therefore gather evidence related to why you think you should have been promoted. This can be based upon your assessments at work, whether you achieved targets, whether you achieved a certain level of commission, your co-workers’ views of you, and assessments of other workers who have been promoted in the past. You can also use your own subjective point of view (that you think you should have been promoted) but you’ll need to back this up with the empirical evidence above.

Is the failure to promote discriminatory or for some other reason than discrimination?

This question is sometimes quite difficult to answer but normally it’ll be fairly clear on the facts whether the failure to promote you is because of unlawful discrimination or for some other reason. A clear example of direct discrimination would be your manager stating that “we only promote younger staff” whereas an example of indirect discrimination would be your employer having a policy that expectant or new mothers are not allowed to be promoted because of concerns as to disruption at work. However, the above examples are rather “clumsy” incidents of discrimination and discrimination can actually sometimes be extremely subtle. You should bear in mind, though, that there may be an entirely innocent reason for your employer failing to promote you – one that does not involve discrimination.

If the failure to promote is because of discrimination, what type of discrimination applies?

There are a number of types of discrimination. The ones that normally apply in failure to promote discrimination claims are:

  • Direct discrimination; and
  • Indirect discrimination

Direct discrimination under the Equality Act 2010 is where you are treated less favourably than other employees because you possess a protected characteristic (your age, race, disability etc.). The less favourable treatment in this case would be the failure to promote you. You would have to compare yourself against actual or hypothetical employees.

Indirect discrimination under the Equality Act 2010 is where you are subjected to a Provision, Criterion or Practice (“PCP”) which is discriminatory. A PCP is discriminatory where it places a group of employees at a particular disadvantage because of their protected characteristic. The PCP must also place you at a disadvantage (by being a member of the above group). For example, a company policy that persons under the age of 30 are not to be promoted to a particular position is indirect age discrimination (however, it would remain to be seen whether it could be justified).

Is there another (non-discriminatory) reason for you not to be promoted?

Think carefully about this. If the reason for you not being promoted is, for example, a personal antagonism (unrelated to a protected characteristic of yours) with your line manager or because of re-structuring of the workforce at your employer then there are other potential reasons for your not being promoted.  If another credible reason applies then your failure to promote discrimination claim will be weakened.

If you don’t think another reason applies, consider whether the failure to promote you is because of discrimination

What evidence do you have that the failure to promote you is because of discrimination? Your claim could be premised upon remarks made by your manager or a trend of actions at your employer (such as, for example, the promotion of young, white employees rather than more experienced employees of other colours). You can either use witness evidence or documentary evidence to prove facts which demonstrate discrimination. Witness evidence would be, for example, your oral evidence to the Employment Tribunal (see here for a description of how to draft a witness statement and see here for a witness statement example) whereas documentary evidence includes emails, diary notes, minutes of meetings, databases, and even audio recordings. The core thing to extract from such evidence is that you’ve not been promoted because of your protected characteristic. If you fail to do this then your failure to promote discrimination claim will probably fail.

Is it worth issuing a failure to promote discrimination claim?

Only you can answer this. If you think that you’ve been discriminated against then there are two choices open to you:

  1. Resign from your employment and make claims for constructive dismissal and unlawful discrimination
  2. Stay in your job but issue a discrimination claim because of your employer’s failure to promote you

However, whether you wish to issue a claim for discrimination in the Employment Tribunal is based upon whether you have a credible claim for discrimination. You will need to provide evidence of this and it’s a good idea to speak to a no win no fee specialist discrimination lawyer before you issue your claim.

You have to be certain in your own mind as to what the best steps to take are. If you don’t think that you can continue working at your employer because of the breakdown in your relationship with them then the best thing to do is possibly resign. However, consider your options first. If you stay at your employer then you have the right not to be victimised by your employer because you’ve made a claim in the Employment Tribunal.

Will there be any consequences for me if I make a failure to promote discrimination claim?

Legally, there shouldn’t be. If you’re subjected to a disadvantage at your employer because you’ve issued a claim for discrimination in the Employment Tribunal then you the right to make a claim for “victimisation”. Further, your employer may be penalised by the Employment Tribunal through, for example, the award of “exemplary” or “aggravated” damages as a result of their conduct.

What other claims might I be able to make in the Employment Tribunal?

If you resign from your employment because of your employer’s conduct then you may be able to make a claim for constructive dismissal.

Will I be able to instruct a no win no fee employment lawyer to take my failure to promote discrimination case on?

You may be able to, depending on the strength of your claim. However, some no win no fee employment lawyers conduct a no-obligation free assessment of cases before deciding to take a client on. It may therefore be worth getting in touch just to see what the specialist discrimination lawyer’s view of your failure to promote discrimination case is.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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