Indirect discrimination?

[ecalid]

Hi guys. Thank you for having me. I work for a well known optical brand in the HR department and have come across an issue with regards to probationary periods. This might be a long one so please bare with me.

So we have one new starter who has started a new life from abroad, they are trained to masters level in HR in their country. They speak English but the manager has said in their probationary hearing that there is a language barrier, this means some delicate phonecalls to the office might need additional support and communication amongst the team would therefore be below the level of somebody who would be a British national (for example).

The manager has said that its their intention to get this person doing more admin work and looking at reviewing written policies and texts. However, the manager passed the probation of this person without any extension.

Ok, so.

We have another new starter who is English and has little to no HR experience, they have some office experience but overall this is a new challenge for them. They were on the brink of prison through poor life choices, addition to alcohol and drugs, at the precepus of their life they took the opportunity from the judge who spared them jail, to turn their life around, they are now undertaking a law degree and a CIPD level 3 at the same time.

During their probation review, they were pulled up on their communication between team members, and not communicating enough to delegate their work load during busy periods, whilst this hasn't affected their work, as said by the manager, it is a concern that they have took too much on in their personal life and this may have adverse affect on their work in the long run because they are not up to speed with the rest of the team. It is also worth noting at this point that both new starters wee paired up with existing staff to assist and help them develop for the role. The foreign national was paired up with a full time member of staff. The English national was paired up with an apprentice with 8 months experience, who works 3 days a week, the responsibilities then solely fall onto the English national.

As a result of the above, their probation has been extended.

My question is. Are they being discriminated against in favour of the HR masters graduate with poor English and communication?.

[EnglandPi]

I would suggest there is not enough information here to possibly form an opinion and any decent human resources person should know that someones personal life is no ones business but their own.

[ecalid]

That's a great response. However, if it is my own personal information then I am happy for people to form an opinion.

[EnglandPi]

That's a great response. However, if it is my own personal information then I am happy for people to form an opinion.

Have I misunderstood?

[ecalid]

Misunderstood what?

Let's assume this is a theoretical instance where the dynamics of CIPD attributes do not apply.

Hopefully that will help.

[EnglandPi]

I perfer not to assume anything. Have a nice day.

[ecalid]

Enjoy your day.

Thank you for your helpful advice.

[ULA]

ecalid let me see if I can help.

Within the department are there some set criteria against which staff in their probationary period are assesed to confirm whether they have passed, whether an extension is required or whether their employment is terminated.

[ecalid]

Hi ULA there doesn't appear to be. There doesn't appear to be a checklist of any sort that indicates the development of the staff. The suitability is solely interpreted by the manager.

The point of communication above was a 'concern' raised by the manager to the English employee, it was felt by the manager that they may be unable to follow instructions and then then had their probation extended.

The same concern was given to the foreign employee, but the manager was willing to mitigate this by allowing them to do more written work, but they passed their probation on the same day.

[ULA]

Would there have been any possibility to put in any mitigation for the employee whose probationary period was extended?

[ecalid]

Hi ULA the mitigation was overridden.

The employee pointed out the obvious facts but the probation was extended regardless.

The employee was then accused of laying blame and not 'taking charge' of their development. Then alluding to behaviour contrary to that expected in HR because of the above.

[ULA]

For any claim of indirect discrimination to apply, the way in which the application of any criteria used to detemine the passing, extension or termination followin a probationary period, which should apply to everyone in the same way, has had a worse effect on this particular employee due to prove a protected characteristic.

[ecalid]

Does this in any way relate to the situation above?

My interpretation is that the foreign individual has been given greater care, in the differential, because of their handicap. But the English individual has been expected to work better in contrast, and given less support and opportunity to develop in the same way as the other. But the standard of care of the English individual has still not been met where it would have been had both individuals been English.

Surely this isn't a reasonable practice?

[ULA]

I cannot see that indirect discrimination can apply unless the employee concerned can prove a protected characteristic and that because of this a process or policy if generally applied puts them at a disadvantage.

What the employee would need to try and set out is that any criteria for passing a probationary period has been inconsistently applied to their disadvantage.