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Is giving less annual leave and paid sick leave discrimination?

Ruth

| 0 Posts

4 Sep, 2020 14:08

Hi,

Can anyone help with this?

If a new employee is hired with a company, on a permanent contract, but is given less annual leave and less paid sick leave than everyone else at the same company, is this considered to be discrimination? (All other employees have the same contract, i.e. have the same amount of annual leave and paid sick leave as each other),

Thanks in advance,

Ruth

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  • Keith

    | 0 Posts

    7 Sep, 2020 08:50

    Depends rather what the intention is for all new staff at that level. If the intention is to offer all new hires the new terms then no (providing legal minimum is met). If however these terms are specific for this person then the question is why? And if its to do with a protected characteristic then yes its probably discriminatory
  • Ruth

    | 0 Posts

    7 Sep, 2020 09:06

    In reply to Keith:

    Hi Keith,

    Thanks very much for your response....much appreciated.
    The intention is not to offer all new hires the new terms, it is specific to this one person (legal minimum will still be met). The reason being, is that he is considered to be less skilled/ a less favorable candidate...(so not a protected characteristic).
    Additionally, he would be the only person of a particular race employed by the company, so I am worried it could appear to be discrimination based on race...

    Thanks,
    Ruth
  • Ray

    | 0 Posts

    7 Sep, 2020 12:12

    Discrimination (choosing to treat people differently) is permitted provided the reason for the discrimination is not an illegal one (protected characteristic, trade union activities etc). In many instances "discrimination" is desirable - such as paying more to a better performer. Unless there are collectively negotiated conditions, it is entirely legal for the employer to "discriminate" - whether it is desirable is another question and will depend on the reasons and the context
  • Anna

    | 0 Posts

    7 Sep, 2020 16:30

    As my colleagues have said, discrimination is unlikely - unless the new hire is working less than full-time (even by an hour or so) in which case it becomes discrimination against part-time workers.
  • Clare Marie

    | 0 Posts

    7 Sep, 2020 19:43

    And adding to the excellent advice given by forum colleagues how will these different terms be explained to the new hire since inevitably employees chat and exchange information and therefore find out the different treatment? I am reminded of a similar situation where one individual exceeded their holiday entitlement following a discussion with other colleagues which lead her to incorrectly understand her holiday entitlement. The difference at the time was down to grades. But it did contribute to a difficult and bad tempered conversation.
  • Clare Marie

    | 0 Posts

    7 Sep, 2020 19:44

    Apologies Ruth, I meant to also say - welcome to the communities. :-)
  • Ruth

    | 0 Posts

    8 Sep, 2020 02:40

    In reply to Ray:

    Hi Ray,

    Many thanks for your response. The reason for the 'discrimination' is that he is a less skilled/ less favorable candidate- so not a protected characteristic. I believe that salary represents/ reflects the level of competency of each employee- but should it also be reflected by giving less annual leave and less paid sick leave? My concern is that he is also the only person of a particular race within the company. Is this indirect discrimination? Or unconscious bias? Or ethically wrong?....If he were to find out that he has less annual leave/ paid sick leave than everyone else, what could the consequences be?

    Thanks a lot,
    Ruth
  • Ruth

    | 0 Posts

    8 Sep, 2020 02:41

    In reply to Anna:

    Many thanks Anna
  • Ruth

    | 0 Posts

    8 Sep, 2020 02:45

    In reply to Clare Marie:

    Thanks Clare! Appreciate the reply...
    Thank you- it's very helpful so far,

    Ruth
  • Keith

    | 0 Posts

    8 Sep, 2020 06:52

    In reply to Ruth:

    The problem you have is what is the real reason for the difference in treatment. Is it his skill level or is it his race? An ET may well consider it his race ( especially as he is only employee of that race and you have reduced other things in addition to salary)

    You would need a pretty robust justification around his perceived lack of skills. Not necessarily one I would be comfortable defending.
  • Mark

    | 0 Posts

    8 Sep, 2020 08:54

    I think if you were to hire other new starters and put them on the same reduced leave and sick leave you'd be in a better position, although it doesn't sound like new terms are in effect for all new starters going forward.

    Bear in mind as well that someone who is disabled may not disclose this from the outset and many disabilities aren't "visible", so there could be discrimination on these grounds too.
  • Ray

    | 0 Posts

    8 Sep, 2020 09:50

    In reply to Ruth:

    As Keith has already said, the question is being able to demonstrate the 'real' reason for different employment conditions for someone who is the only employee in a particular racial group - not an easy thing to do. If the employee chooses to challenge the decision, since race is a "protected characteristic" under the Employment Act, no length of service is required and there is no limit on the award that a tribunal could make. Unless you have other people with similar reduced conditions you will have difficulty building a credible defense in the event of a claim.......
  • Ruth

    | 0 Posts

    9 Sep, 2020 09:53

    In reply to Keith:

    OK, thanks very much Keith- this has been really helpful.
  • Ruth

    | 0 Posts

    9 Sep, 2020 09:57

    In reply to Ray:

    Thanks a lot for the help Ray, will bear this in mind.
  • Victoria

    | 0 Posts

    9 Sep, 2020 16:00

    Hi Ruth,

    As you have not done this because of a protected characteristic it is not discrimination, as others have said, but the onus is then on you though to prove it is not. This may be clear now but may be lost in the mists of time unless documented. In the future people may leave, he may raise this and no one will understand the justification. My question would be - is there another way to do this? Can you hold back on bonus or pay (unless it's too late as you have already communicated those terms) until he meets the bar? But also - why would you want to do this? Treating someone differently regarding common terms can lead to all sorts of unintended consequences or mistakes with benefits etc, and can engender a feeling of 'otherness' for the individual which they may attribute to race anyway. If you choose to go down this route consider putting in a timescale for review, particularly when he starts performing at the level the role requires so he is not treated unfavourably when he gets there.