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taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6430
Experience:  15 years experience of advising on employment law matters
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Customer Question

I am an employee in a global energy company in the UK. I got transferred from one of our offices from the MIddle East since Sept 2011. I have been working for the group since Dec 2006 in various roles. Before moving to the UK, I have been receiving consistently high performance rating regardless of the job I am doing.

Upon transfer, my performance rating for the first 8 months was disregarded when assigning me a performance rating for the whole year.

My performance ratings have been remarkably down compared to the several years before arriving to the UK. Even for 2013 when I received an e-mail of recognition from the Legal Director (Executive Committee member) one of my key stakeholders, my performance rating was still on the bottom 40% of the organization.

My manager throw the other day a comment of discriminatory effect; when we were talking about the scandal that the US was tapping on Merkel's phone. She told me that she is ok if the news were that the US were tapping on my President, but why merkel.

Finally, my assignment is due to an end on 1st of September 2014 (3 years after the starting date, which was the agreed duration from the beginning). I have sent my boss a note asking her for her approval to start applying internally for roles starting June 2014 (which is a normal practice for employees to start applying for other jobs 3 months before there time) given that my kid is attending school and I need to align with the school year. Hence, 1st of September has to be my latest last day of the assignment. However, she has refused and asked me not to apply to any role with a starting date before Sept 1st. However, she added that in case you haven't identified a role by that date a notice of repatriation will be issued to me and I would repatriate to my base country (which would end to severance).

I feel I am being discriminated against as a middle eastern and being treated in a way that is different to my colleagues. Appreciate your response
Submitted: 4 years ago.
Category: Employment Law
Expert:  taratill replied 4 years ago.

taratill : Hello my name is Jenny and I am happy to
taratill : help you today. Have you raised a grievance about this?
JACUSTOMER-jfdz5d9d- : Not yet. Kindly, note that I work as an HR Manager.
taratill :

Have you asked the reason why you are being asked to refrain from applying from other jobs that start before Sept 1st? I need to pop into a meeting until just after 9 am, so there may be a slight delay in getting back to you.

JACUSTOMER-jfdz5d9d- : She mentioned that there is no one in the pipeline at the moment to fill my position if I applied to roles starting 1st of June. Hence, I have to wait till 1st of September. She added that she can only release me earlier and accept the business continuity risk if the Middle East HRVP asked for me to fill a role earlier as I am considered a 'Talent' for the region.
JACUSTOMER-jfdz5d9d- : Kindly, note that I am Egyptian national working in the UK under Tier 2 ICT. Visa
taratill :

Ok thanks, is there a possibility that the role will continue in the UK and what outcome do you seek?

JACUSTOMER-jfdz5d9d- : The role is a continuous role. If I waited till 1st of September and start applying:
JACUSTOMER-jfdz5d9d- : a) they are going to provide me with repatriation notice so I have to go bk to the base country in 3 months, which is ok. However the timing will be not ideal for my kid for school. Hence, I wanna have it Sept 1st to align with the school yr.
JACUSTOMER-jfdz5d9d- : b) I will apply while I am under the risk of repatriation already with no normal period of applying. Employees applying who are under risk of redundancy/ repatriation don't have the best reputation of application as it appears as nobody accepted them so far so why me
taratill :

So to be clear you believe that you are being discriminated against in this situation on the basis of your nationality?

JACUSTOMER-jfdz5d9d- : Yes
taratill :

Ok well, as you are no doubt aware, being a HR Manager it is unlawful contrary to the Equality Act 2010 to discriminate against a person on the grounds of nationality and potentially you could bring a claim against the employer under the Act.

taratill :

You would be expected first to exhaust internal grievance procedures as there may be another explanation for this.

taratill :

I would therefore advise that you consider raising a grievance in the first instance. It may be worth having an 'informal discussion' with your manager initially as it may be that, in doing so, the problem can be resolved.

taratill :

If it is not then you can raise a formal grievance.

taratill :

You will, no doubt, be familiar with your organisation's grievance procedure.

taratill :

If you are not satisfied with the outcome then you can submit a claim using the form you will find at

taratill :

If you have any further questions about this please do ask.

JACUSTOMER-jfdz5d9d- : Yes, thanks I am aware of that. From what I have advised you do you see a merit to my case or not?
taratill :

At the moment I do not know enough about the situation. Are you the only person who has been told not to apply for other positions? Is this the only reason you believe that this amounts to discrimination, or is there other evidence to support your suspicion?

JACUSTOMER-jfdz5d9d- : The comment that she made the other day about that she is ok that if the news were the US was tapping on The Egyptian president phone and not Merkel's.
JACUSTOMER-jfdz5d9d- : The fact that my performance rating are in the bottom 40% of the group regardless my strong recommendation email from the Legal director (key stakeholder)
taratill :

Ok were there any witnesses to the statement about phone tapping?

JACUSTOMER-jfdz5d9d- : yes, another colleague of mine. Shel followed
JACUSTOMER-jfdz5d9d- : she* followed her comment with a note (or was that something naughty for me to say) I said yes
JACUSTOMER-jfdz5d9d- : The next day I asked her to join me in a meeting room when I told her that it was very offensive and if a man in the bar has said such comment to me, I would have punched him in the face
JACUSTOMER-jfdz5d9d- : She said sorry, I was trying to be funny but I failed miserably
JACUSTOMER-jfdz5d9d- : Actually my performance rating is among the bottom 28% in the HR among the group when it has been always the top ~27% among the group before coming to the UK
taratill :

Ok thanks. Well the 3 things together do point to the possibility of discrimination. As I have said before though you have to give your employer the opportunity to respond to a grievance before it is possible to assess the strength of a claim. If, after raising a grievance, your employer responds by making it clear that the statement from your boss was inappropriate and should not happen again (possibility by suggesting some discrimination training) and can show non discriminatory reasons for the performance rating and for the fact that you have been told to refrain from applying from other jobs, then you may not have a strong claim. If your employer does not take your allegations seriously and cannot give non discriminatory reasons for the rating / request not to apply for jobs then I think you would have a strong claim.

taratill :

Please can you let me know if there is anything further you would like to know about this, and please take the time to rate my answer as I am not otherwise credited for my time.

JACUSTOMER-jfdz5d9d- : So Otis better to go through the grievance route first before going resigning and making a claim for constructive dismissal
taratill :

Absolutely, in fact it is imperative that you do so before claiming as a tribunal would expect all internal procedures to be exhausted before a claim is brought.

taratill :

In your situation your potential claim is for both constructive dismissal and discrimination contrary to the Equality Act.

taratill :

Please let me know if there is anything further you would like to know about this. I would be grateful if you would take the time to rate my answer as I am not otherwise credited for my time.