Lack of promotion?

Hakan Enver 15.01.2016

A third of workers plan to quit their job in 2016, with lack of promotion as the main reason. What are your employment rights to be promoted, and what happens if you are bypassed by your employer? Employment lawyer, Philip Landau, looks at the legal position.

According to a recent survey by the Institute of Leadership & Management (ILM), just under a third of workers are planning to quit their jobs in 2016. The survey interestingly revealed that most workers (26%) wanted to leave because of poor future job prospects- in other words lack of promotion. A higher pay cheque was not the governing factor.

The ILM survey follows another study they undertook last year, which found workers over 50 are routinely being overlooked for promotion despite possessing the requisite knowledge and experience. The ILM’s Untapped talent: Can over 50s bridge the leadership skills gap report found that, though over-50s rated their own desire to develop at 94%, 61% of managers said their over-50s workers have low or very low potential to progress.

And according to a survey by employment website Monster, one in four employees in the UK have never been promoted, and one in 10 have failed to move up the career ladder in the past decade.

But can you insist that your employer considers you for promotion, and hold them to account if they consistently fail to do so? And does it make a difference that there are vacancies you are not being considered for?

It is, in fact, not necessary for employers to advertise vacancies or opportunities for promotion either inside or outside their organisation. This means that roles can be filled without you even knowing they exist. The usual exception to this is where there is an internal recruitment policy or trade union/collective agreement which provides that roles must be advertised internally. A breach of such policy could give rise to a challenge being made against your employer, but a successful legal challenge will in practise be limited in scope unless the policy is specially incorporated into your contract of employment.

You will have a much higher degree of success in challenging a lack of promotion if you can show that the real reason you were bypassed for promotion was because of discrimination. Every worker has “protected characteristics” under the Equality Act 2010. These protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

In looking to see whether there has been discrimination, the test will be whether you have been adversely treated as compared to another worker (or workers) that do not have the same protected characteristics. 

In terms of training and development (which could later lead to promotion), your employer can generally decide whether this offered and if so, to whom. But this must also be done without unlawful discrimination. 

Promotion or training opportunities should also not stop simply because you are a woman who is pregnant or on maternity leave. You should be told about opportunities and given the right to apply in the same way as if you were at work. Your employer should not assume that you would be unsuitable for promotion simply because you have children with it being perceived you could not take on a demanding role. This would otherwise amount to sex discrimination.

Similarly, if you are a disabled person and might be eligible for a promotion or training, an assumption should not be made about your abilities or willingness to take on a role, and consideration needs to be given to reasonable adjustments enabling you to perform that role.

If you think you have been discriminated against, you should try to resolve the matter amicably with your line manager or HR in the first instance, and if necessary lodge an internal grievance. If this is unsuccessful, you are able to bring a claim in the employment tribunal- and the damages if you win are uncapped. The tribunal process would need to be started within 3 months’ less one day from the last date of discrimination (whether this is the date of termination of your employment or otherwise). 

It is now mandatory to go through the Acas early conciliation scheme before you can submit a claim to the tribunal.

Philip Landau is an employment lawyer at Landau Law. You can follow him on Twitter @philiplandau or LinkedIn.

Hakan Enver's picture
Managing Director
henver@morganmckinley.com

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