dondada,

 

just quoting cases is like taking someone to a law library and saying "look at all the books!"

 

What is helpful is highlighting the specific circumstances of the ruling, the specific point of law, and in what way they are like the posters case. If they posters case does not rely on the same point of law, then they are not useful cases.

 

G4S versus Powell probably does not apply here, because it concerned a case of disability. Illness is not disability except in very specific circumstances.

The OP said he had stroke about 6 months ago.The govt guidelines list stroke as long term impairment deemed a disability

https://www.gov.uk/government/publications/equality-act-guidance

It is on page 8 G4S v Powell is clearly applicable to his case

The OP said he had stroke about 6 months agoThe govt guidelines list stroke as long term impairment deemed a disability

 

https://www.gov.uk/government/publications/equality-act-guidance

 

 

It is on page 8 G4S v Powell is clearly applicable to his case

I am afraid your reading comprehension is flawed. That page says disability CAN arise from a stroke, not that it DOES ALWAYS. Indeed I know a large number of people who have made a full recovery from a stroke and gone on to live very active and fulfilling lives. I hope this also happens for the OP.

So unless OP can give is a fuller view on the condition and if it meets the legal definition of disability, I am afraid further case law is of no relevance.

By the way, I thought other readers might like a summary of the case referred o

https://www.personneltoday.com/hr/the-10-most-important-employment-law-cases-in-2016/

6. Pay protection can be a reasonable adjustment

G4S Cash Solutions (UK) Ltd v Powell (EAT)

What happens to the pay of a disabled employee who is moved to a new role because he or she is unable to continue in an old role?

In Powell, a maintenance engineer developed back problems and retained his existing terms and conditions, but moved to the lesser role of “key runner”.

However, a dispute arose after his employer said that it would only keep the role, which it said was designed to be temporary, if he agreed to a reduction in pay.

In the engineer’s subsequent disability discrimination claim, the EAT accepted that, while not an “everyday event”, there is no reason why pay protection cannot be a reasonable adjustment as part of a package of measures to get an employee back to work.“

You will see from the wording that pay protection is seen, in some cases, as a reasonable adjustment to help an employee back to work, but it is by no means suggested it applies in every case, or is necessary in every case. More explicitly “However, it also said that the question of whether it was reasonable for that particular employer was separate and should be considered on a case-by-case basis” (http://dixcartlegal.com/articles/employment/disability-reasonable-adjustments-can-include-protecting-pay)

So it would be nothing short of reckless to encourage people, even those with a clearly evidenced disability, to rely on this case law.

Dondada, I think if you are going to ask Sangie to quote laws to support their advice, your own evidence needs to be of a much higher quality too. Otherwise people will be confused and misguided. This should, to my mind, be a place for help and support, not debating club. Usually I’ve got better things to do than hunt down and refute inappropriate case law, but when I have time, I’ll keep doing it, so people are well informed.

On the Equality Act note, I also have type 1 diabetes that was declared to my employer 21 years ago when I was appointed but they have never asked about reasonable adjustments.

You will see from the wording that pay protection is seen, in some cases, as a reasonable adjustment to help an employee back to work, but it is by no means suggested it applies in every case, or is necessary in every case. More explicitly “However, it also said that the question of whether it was reasonable for that particular employer was separate and should be considered on a case-by-case basis” (http://dixcartlegal.com/articles/employment/disability-reasonable-adjustments-can-include-protecting-pay)

 

.

Thank you for bringing this out as it illustrates my point "Case by case basis", I take that to mean it is fact sensitive.The OP (and others) in similar circumstances are now aware that Pay Protection COULD be a reasonable adjustment.Since they alone know the facts of their cases, they would then read the case law and see if it applies to their own case.

It is very annoying when people insult the intelligence of others because they asked a simple question.The OP is intelligent enough to research any Case Law and decide if it applies to him.

Let him do so, please

no such requirement 21 years ago and the EA didnt exist either and they arent expected to be clairvoyant.

Pick your battles carefully.

On the Equality Act note, I also have type 1 diabetes that was declared to my employer 21 years ago when I was appointed but they have never asked about reasonable adjustments.

In reply to ericsbrother and the point he made - wouldn't any employer, irrelevant of the length of time in charge of an employee, be required to be cognisant of any legislative changes and be required to implement such according to such members of the affected workforce?

Dondada has inspired me to continue my claim - thank you.

Going back to my recent post - where can I learn about representing myself should this end up at an EAT?

Have you attended an ET or EAT? I know for an ET you can attend a local one, not sure about second tier hearings.

Edit: As far as I can see you haven't confirmed whether this is an employment tribunal or an employment appeal tribunal.

HB

Sorry HB, my error, this would be heard at an ET.

In reply to ericsbrother and the point he made - wouldn't any employer, irrelevant of the length of time in charge of an employee, be required to be cognisant of any legislative changes and be required to implement such according to such members of the affected workforce?

In 21 years, have you ever needed an adjustment to accomodate your diabetes? I have MS but don't really need them to do anything abiout it.... managing my condition is currently down to me!

so when did you raise this with them as an issue for consideration, the day after the new laws came in?

they will be aware of the laws but not aware that you may have diabetes because it is none of their business unless you request some consideration for a disability as a result of this condition.

You cant bring up things after you have left and then say that they werent considered so it is now unfair and you want some recompense.

Can you show an example of where your diabetes was a factor in some disciplinary matter? If not you would be wise to move on to the next point

As someone who retired early because of health grounds I can say that it is an absolute devil to get anywhere by expecting anyone to give a stuff about your condition.

I too have MS but one OH doctors report said that I shouldnt get an enhanced pension because they may find a cure for it before my normal retirement date and as for a missing leg, the prosthetics are so good these days they are better than real ones. well if that is true why wasnt Oscar Pistorius a word famous roofer rather than runner?

I have taken organisations to court for disability discrimination and won one and lost one.

You will find that because of the nature of your claim that it may well take 3 years to get to then end of the matter.

Do you want to spend the time doing that rather than something else.

As said, choose your battle carefully. A small victory over procedural matters is better than a big disappointment.

In reply to ericsbrother and the point he made - wouldn't any employer, irrelevant of the length of time in charge of an employee, be required to be cognisant of any legislative changes and be required to implement such according to such members of the affected workforce?

 

Dondada has inspired me to continue my claim - thank you.

 

Going back to my recent post - where can I learn about representing myself should this end up at an EAT?

In reply to ericsbrother and the point he made - wouldn't any employer, irrelevant of the length of time in charge of an employee, be required to be cognisant of any legislative changes and be required to implement such according to such members of the affected workforce?

 

Dondada has inspired me to continue my claim - thank you.

 

Going back to my recent post - where can I learn about representing myself should this end up at an EAT?

Hi Andyasw,

Yes the Equality Act wasn't in place at the time you were employed However, the Disability Discrimination Act 1995 was in place when you were employed

Yes, there was a duty to make adjustment.However, there is a legal principle called Laches, you waited too long

You have a strong case in the Deduction/Pay Protection Claim.Pay Protection is an exception.Your employer ignored the Doctor's advice, that means you qualified for the exception

You need to first ask your employer for their reasons.The Tribunal would not be too happy if you didn't seek to resolve the issue.

Finally, you need to do a lot of research! G4S is a relevant case in your situation.But you need to also read cases where the Claimant lost.You need both cases to be able to distinguish your case

The other side would try and prove to the Judge that your case is similar to the one that lost.You need to know that case in order to show to the Judge the difference (the legal term is called "Distinguish") .Feel free to ask any question

Wish you all the best

Thank you Dondada but where can I find such cases to read up on? Is there any particular website you would recommend?

Thank you Dondada but where can I find such cases to read up on? Is there any particular website you would recommend?

The website I like using is https://www.employmentcasesupdate.co.uk/site.aspx?i=ed31608

https://www.employmentcasesupdate.co.uk/site.aspx?i=li0&p=4&s=pay%20protection

But you might like other websites.Just read as many case laws so you can distinguish your case

Wish you all the best .keep us updated

My case against my employer is now in the early conciliation process with ACAS.

My case against my employer is now in the early conciliation process with ACAS.

Hopefully they will decide it's not worth the risk of expense of defending an ET and make an offer Fingers crossed!

Sadly not - ACAS have been in touch with my employer who is arguing that a return to work plan required planning as their opinion was that I could not return to full time working and that I agreed to a phased return and this is also what my GP had put on the fit note.

Seems like I haven't a case after all despite their sickness policy stating that if an employee believes they're fit to work but management do not then this is classed as medical suspension.

Since my last post I am now in receipt of an ACAS certificate and am therefore able to apply to an ET for a hearing.

I have consulted with employment lawyers who say I have a case for unauthorised deductions as a person covered under the Equality Act and that I should also claim for injury to feelingsfor the stress, anxiety and upset my employer has caused me during a period when I required support not punishment.

A no win no fee lawyer?

Yes

Then I would take their steer and let them get on with it

Thanks Emmzzi they are on the case.

Since my last post I am now in receipt of an ACAS certificate and am therefore able to apply to an ET for a hearing.

I have consulted with employment lawyers who say I have a case for unauthorised deductions as a person covered under the Equality Act and that I should also claim for injury to feelingsfor the stress, anxiety and upset my employer has caused me during a period when I required support not punishment.

Well done to you:high5:

You listened to your gut and ignored the nay-sayers in your mind

Let the lawyers handle it from here

They are professionals and that would take the stress off you

I'm really pleased for you

Many thanks dondada. I have appreciated your helpful comments and advice throughout.

Just to let all or any interested parties know - my former employer agreed to settle in order to avoid a tribunal!