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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47863
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked in an organisation 4 years and have

Customer Question

I have worked in an organisation for over 4 years and have signed competencies and appraisals which reflect my competencies.I have now applied for 3 jobs there and the jobs have been given to people who don't have the same competencies and experience i have and they met me there . How does the Equality and Employment laws work in this case? Thanks
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello why do you think you were overlooked for these posts?
Customer: replied 1 year ago.
I am going on the assumption of the fact that I currently work part-time (inferences have been made and my last interview feedback comments alluded to that). I am also going on the protected characteristic of race as the 5 people appointed to the post are 4 Portuguese and one white British and I am Black African.
Customer: replied 1 year ago.
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Expert:  Ben Jones replied 1 year ago.
The starting point is that employers have the right to choose who they employ and can make such decisions based on a wide range of factors. There could be a number of reasons why one candidate is chosen in preference to others or why someone is not given a job, even if they are generally considered to be the best candidate. It is generally lawful for the employer to use whatever factors they feel are relevant and appropriate in the circumstances to come to that decision. The only requirement in law is that the employer’s decision is not based on discriminatory grounds. That means that it should not base its decision on factors relating to gender, race, religion, age, disability, sexual orientation, etc. Similarly you have protection as a part-time worker because you should not be treated detrimentally due to your part-time status. If the employer’s decision is based on any of these, there will be a potential case of discrimination and the affected person can potentially take this further. However, in the absence of any discriminatory reasons, the employer will rarely be acting unlawfully and will have the general power to be selective over whom it employs, even if it this generally appears to be unfair. In your case there is evidence to suggest that there may be unfair reasons behind their decision, but it does not mean that this is the actual reason. You may of course challenge them over it and they can try and show that there were other factors. Usually that may be to do with skills but if you are better in terms of skills and knowledge then that may not be their best defence so they would have to put something else forward as a plausible reason. This is your basic legal position. I have more detailed advice for you in terms of the options you have to challenge this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
I followed the organisation's grievance procedure which requires an informal meeting with the manager's line manager, i was not satisfied with the outcome since they brought no objective evidence. One of the issues i raised was why the successful candidate was able to apply for the job without the job being readvertised when the vacancy had closed 2 weeks prior to that. I had to apply through the website. i was told it was manager's discretion.
Expert:  Ben Jones replied 1 year ago.
There is no legal requirement to advertise a job - many employers do just to make the process fair, but legally they are not obliged to do so. So the issue is not whether the job was advertised or nit but what grounds existed for not selecting you or for selecting others in preference to you. If you have already raised a grievance and you were not satisfied with the outcome, then you can appeal that decision. After that, your only options are to consider resigning and claiming constructive dismissal and discrimination, or remaining in the job and just claiming discrimination as you do not need to leave your employment to make such a claim. be aware though that there is a strict time limit for claiming and that is 3 months from the date of the alleged discriminatory act, so it would be from the date you were rejected so you need to act promptly
Customer: replied 1 year ago.
Thanks.Since I wasn't satisfied with the informal meeting. I am about to submit a formal grievance letter to the HR of the Trust I work for. I have spoken with advisers from Acas and the Equality Advisory support services. I do need to know the options available to me from a legal viewpoint and if there is any merit to the case.
Expert:  Ben Jones replied 1 year ago.
The options you have are as summarised in my last post - grievance and tribunal, that is it really. ACAS will help you with negotiations before you are allowed to make a claim but there is nothing else available in terms of legal options. As to merits I cannot give you merits based on the limited information I have and also it would depend on what the employer can provide as a defence to the allegations. Whilst on the face of it you may have been discriminated, that is not necessarily the case and if the employer can successfully show that their selection had nothing to do with your race or part time status, then they could potentially defend a claim. So without knowing exactly what they may be able to rely on, it is impossible to discuss merits
Customer: replied 1 year ago.
Thanks a lot for your advice.
Expert:  Ben Jones replied 1 year ago.
You are most welcome, all the best