Maternity rights question to pose at ET?

sangie595

Comms69 wrote: »

Im unclear if there was actual discrimination.


When you say the childcare was not suitable, was that because it would affect the hours you would work?

Ah, no, with the additional information, assuming the OP can evidence what they said previously, it's discrimination in my view. Assuming the OP and the employer agreed a job, terms and hours of work (and there is evidence of that), then the childcare provider is, quite correctly, none of their business. And they cannot claim she resigned if they can be shown to have been organising her return to work!

They can therefore claim she said she wouldn't return but it would appear, based on written evidence the OP says that they hold, then that could not be a credible statement without any evidence on their side to support it.

Comms69

sangie595 wrote: »

Ah, no, with the additional information, assuming the OP can evidence what they said previously, it's discrimination in my view. Assuming the OP and the employer agreed a job, terms and hours of work (and there is evidence of that), then the childcare provider is, quite correctly, none of their business. And they cannot claim she resigned if they can be shown to have been organising her return to work!

They can therefore claim she said she wouldn't return but it would appear, based on written evidence the OP says that they hold, then that could not be a credible statement without any evidence on their side to support it.

Sorry I meant, was the OP getting in touch to say I'm returning to work, but because of childcare I can only do X, Y and Z, and not my previous hours. And employer responding saying the arrangements aren't suitable for the role.

sangie595

Comms69 wrote: »

Sorry I meant, was the OP getting in touch to say I'm returning to work, but because of childcare I can only do X, Y and Z, and not my previous hours. And employer responding saying the arrangements aren't suitable for the role.

That isn't what she said though. She said the employer considered the provider unsuitable. On that basis she concluded it wasn't the employers business. I doubt she'd have concluded that if she couldn't work the hours they wanted - that very much would be their business! Based on what the OP says, if she wishes to hand her child over to Jack the Ripper for care, that's her choice. Although Social Services might have a view on that:rotfl: An actual offer of a suitable alternative job was made - in assume the OP can prove this. And accepted. And then withdrawn and handed to the maternity cover! With an excuse that she couldn't either have her "old" job back because the same maternity cover was doing it!

If that can be evidenced, they would be wise to crumble and make an offer before the tribunal opens.

Comms69

sangie595 wrote: »

That isn't what she said though. She said the employer considered the provider unsuitable. On that basis she concluded it wasn't the employers business. I doubt she'd have concluded that if she couldn't work the hours they wanted - that very much would be their business! Based on what the OP says, if she wishes to hand her child over to Jack the Ripper for care, that's her choice. Although Social Services might have a view on that:rotfl: An actual offer of a suitable alternative job was made - in assume the OP can prove this. And accepted. And then withdrawn and handed to the maternity cover! With an excuse that she couldn't either have her "old" job back because the same maternity cover was doing it!

If that can be evidenced, they would be wise to crumble and make an offer before the tribunal opens.

No fair enough, I was just asking as otherwise it is very strange.

DiscriminationClaimant17

So in the bundle is evidence of; my job and responsibilities before leave, going on mat leave, receiving mat pay, return to work emails and arrangements, the letter putting my cover at notice, training for the new job, handover meetings planned with cover, plans to start the new job, and then the unanswered grievance where I explain everything that happened in that final phone call before pay just stops and the ET process starts.

So probably like most discrimination it's mainly he said/she said and nothing terribly concrete - but NOTHING evidencewise from R and what I've put forward is a couple of hundred pages thick.

They did talk about settling and asked me to "name my price" and then went very quiet without any counter offer, after I think about 2 months?? Just rejected it and that was the end of that.

It all seems like I'm in some weird dream and nothing is happening the way it's "supposed" to.

Sangie is correct, it was my choice of provider that my employer chose to claim was unacceptable. I didn't need to change my hours or anything, it had no knock on effect to my work at all - I'd accepted more hours after Mat leave when I took on the greater responsibilities.

DiscriminationClaimant17

Comms69 wrote: »

No fair enough, I was just asking as otherwise it is very strange.

You're telling me. I've probably said too much now, but the whole thing is just ridiculous, and I can't find any advice anywhere based on what could help me in the actual hearing because as I understand, that it's not something that has happened and gone to tribunal before?

sangie595

You are, to an extent, overthinking this. You must present a case that enables the tribunal to form a view that discrimination may have taken place. Not that it did take place. At the point that they form that view, the burden of evidence shifts - the employer must prove that discrimination didn't take place. Based on what you say here, showing it may have taken place isn't going to be hard. And I'm almost tempted to want to come and watch them try to prove it didn't!

DiscriminationClaimant17

You're not alone, I think the public gallery is going to be full of nosey people eating popcorn!

kingfisherblue

Presumably the employer doesn't comment on the childcare arrangements of male employees...

DiscriminationClaimant17

Hi all, I have an update and a new question since you've all been very reassuring in the past.

Sadly I lost the case at the start of the month and I'm ready to reveal a little bit more if means you're able to help/advise.

I've written a letter to the judge asking him to reconsider the evidence (he didn't seem to consider ANY of the written evidence at all as he said in his judgement, the verbal evidence given by R was more plausible - I'm totally staggered!)

The reason we went into preliminary hearing at all was because in R's ET3 they disputed that I was ever an employee, I have been clear all the way through the process that I was a worker, with them even referring to me as a worker in the ET3 when they argued that I wasn't an employee. Once the judge asked for clarification and I reminded them that I was a worker, they suddenly disputed that too.

On the day of the hearing they arrived late and submitted the bundle to the judge late, I'd asked for some amendments through the tribunal which a judge had agreed as they weren't cooperating and on the day they "couldn't find the documents I'd requested" but I'd brought them along suspecting they'd say that (the documents in question disproved their witness statement) and put them before the judge. What I didn't expect was that the judge wouldn't read it in advance and when I got into the hearing I had to justify it all over again despite attaching the emails from the tribunal approving it. The judge DID agree it could stay but didn't read it. He also said that because the bundle was produced late all he'd read were the witness statements which would be taken as read. I knew there wouldn't be much time to read the bundle but this took me aback as I've prepared everything so that there was very little to actually discuss at the hearing as the evidence told a pretty complete story on its own.

Basically R got into the witness stand and lied in answer to every question! But did mention a document and a date which when I got home I looked up on my email and found it to be very relevant, which she hadn't disclosed. It shows that a conversation that R denies, was actually had prior to my maternity leave.

Their entire case was based on them saying that I believed I was a worker but was wrong, they had never believed me to be either a worker or an employee and although the discrimination by my manager was regrettable, the ET had no jurisdiction over it because I didn't have any employment rights.

The judge commented at the start that there was no way he was missing his lunch for this and would be going home at ,4.30, and would certainly not be adjourning for another day so to be quick basically! I questioned her as best as I could but had to skip a lot of questions to keep in with the time limits and what I did ask her she lied about, despite showing her the evidence. She just said I'd interpreted it differently to how she meant it and I'd managed to collect some documents which didn't genuinely reflect our working relationship because they could be misinterpreted. There isn't a shred of evidence supporting them. The dodgy letter that I complained to you about before, they admitted was" overlooked" and never sent.

When I was questioned I couldn't answer a couple of questions because the evidence they were showing me didn't make sense, rather than giving me time to process what it was they pounced on me saying that there was no regularity for my work and I was a liar, but when I got home and looked at it in a clearer mind was wages for overtime the previous month, not a full month's wages that didn't fit in with the others (them trying to demonstrate irregular freelance work).

In the end as part of his judgement the judge determined that due to the small amounts of work and the length of time I was working there before my maternity leave (which they say wasn't maternity leave but a period of agreed leave that I took from freelance work to have my baby?!) It was "clear" that I was freelance and not a worker or employee.

But protection against discrimination is a day one right and doesn't matter whether I did one day a week or 5, so I was so shocked that he used these elements to weigh up my worker status.

Anyway!! That's my rather hacked off rundown of the day and the judgement and I've written a very calm and polite letter to the judge pointing out every page and paragraph of evidence that disprove the conclusions in his judgement and everywhere in the witness statement that was lied about. It's come to 11 pages. I'm sure if he was irritated by me before then this isn't going to help but I can't believe all my evidence was allowed to be swept under the carpet and I feel so let down by the justice system, I have no choice but to put forward a detailed catalogue of every misrepresented piece of evidence. I've also attached the email my manager talked about in the witness stand and written a statement to go with it explaining it's relevance although I understand the judge doesn't have to consider this as it's not something that couldn't reasonably have been found before... But I didn't know what she was going to lie about until I got in there! She might as well have disagreed that the sky was blue.

What happens now? How long does it take to come back?
It was sent off a week ago and there have been no comments from R to slow the process down, which I understand could be tactical or self preservation in the event that the judge doesn't reconsider it. I also understand that he'll probably ask for comments from them but not sure if it'll be for all of it or if he'll pick out certain bits, give them a deadline, ask for further evidence, invite us back in for another hearing... In my mind there's so much there already that was missed.

Is there any point in law that the judge was wrong that I could take it to full EAT if he declines the reconsideration?

I did point out that their caselaw all highlights how worker status/employment status could be interpreted if there is confusion between the parties, when actually the evidence shows that they agreed the worker status until after the ET3. He said their caselaw helped him make his decision?!?

Gaaah. Sorry for the mammoth post, end of rant.