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  1. s Dear unclebulgaria67 , thank you very much for your kind information, really appreciated . In our case things happening differently ,ET's judgement was that he has disability but they believed claimant has incompetent so they were dismissing him incompetency ground but later on assessment report was reviewed by regulatory body ,they confirmed that report was insufficient to prove that he is not fit for the role ,they completely given him clean chit , now the council (respondent) is saying that time of dismissal evidence was not there so the employer is not guilty .but my question is if any criminal case if murderer found that an evidence that he did not do the murder later on then what happen to the judgement ? it will be reverse or stay (the old judgement) because the time of judgement fresh evidence was not there ! sorry if i make u confused ,I know criminal and civil both have two different issue of law. but thank you so much for giving me a reply ... i feel there are actually some one who care for others! regards ~p
  2. Hi All, I am looking for a mentor who can explain about basic law of employment. I want to know about point of law in very simple term with example (case law) I want to know about error of law in very simple term with example (case law) when a employer dismissed a employee with knowledge of disability on ground of capability but after dismissal if found by regulatory body that claimant has no professional incompetence then based on new evidence what will be the case ? Is there any effect of fresh evidence in the court of appeal ? now respondent argued that when they dismissed the employee in that moment they have no knowledge of fresh evidence so they are not guilty of any discrimination. my understanding that when a employer is going to dismissing a disable employee (with knowledge disability)they should more careful than non disable employee..isn't it ? it would be highly appreciate if you could answer my question..please help me out : thanks in advance regards P
  3. well done! what you suggest that means demote all disable employee...best reasonable adjustments to allay the stress!! No matter if that is contrary to ant-discrimination law. Stress is a neutral factor in any job or work can be experienced by any one, but for a disable employee that same stress can be a disadvantage- that requires reasonable adjustment not demotion rather may be a promotion ..if one agrees with Framework directives 2000/78( European community law) ie anti discrimination law is to bring a disable employee in employmnet on equal footing not necessarily means an equal opportunity ..but more akin to unequal treatment for unequal difference!!!
  4. important thing is it would be the first case under equality act..ET using wrong meaning of proportionate means achieving legitimate aim
  5. his natur of disability he suffers from stress...Adjustment was shorter hours in a weeks , breaks(20min) between every 3 to 4 hours duties ,one to one communication and written instruction, mentoring ,supervision.
  6. occupational health said return him to his post with recomendate adjustment ,it was after the knoledge of disability. There had been a performance assessment that recommended training before the knowledge of disability. Employer did not inquire with the report author about their view on the report in the light of new evidence. Employer ignored their own occupational health recommendation.
  7. yesss honey bee.it is same matter. we had been from the EAT just day before yesterday. @Emmzie funny enough thye never did say or specify what the complaints, but without giving him the complaints thye sent him for an assessmnet. the assessment raised concern about clinical practice unrelated to his condition and thye recommneded some amount of training. As for the interpersonal issues it later leads to his diagnosis. while on the other hand employer did not fiind any training over a period 3 years. now, employer comes back saying we couldnt find the training so we cant let you work on your post, we can only offer you a down grading to continue in the employment, if you don't take it we will dismiss you, and said we only make any reasonable adjustments in the context of your disability once you accept the demotion. In other words he was demoted not for an impact arising from his disability. He obviously did not accept the demotion and got dismissed. Eventually, claim was on unfair dismissal and disability discrimination. He won a claim for unlawful wage deduction. the latter was cross appealed by the employer and EAT took our DD claim for full hearing. the judgement is reserved. So we dont know yet which way it will go.
  8. @ Phaitun. yeah. Thanks. Just couple of more... we will of course ask for this equality impact assessmnet. Does it mean impact of his disability on the work he requires to do? what was this about previous version? what exactly you meant? do you mean any such previous assessment? my friend has been diagnosed with having a life long Asperger's Syndrome, although without knowing that he reached the top of the ladder of his career, but he had no complaints from his patients as reegard his communication difficulties, if any at all came from his staff, colleagues and juniors. Cheers all.
  9. @becky2585 thanks a lot for finding the case ...really appreciate your help..kind regards prishan
  10. Hi thank you all. I was away in te EAT last couple of days to suport my friend. On the first day, the judge apeared to be agreeeing with my friends submission and he was bashing the respondent's counsel. On the second, he turned around to 180 degree. We were simply confused. when my friend wanted make his legal submission he was not allowed. He said no need to show case laws. It seems he quite now agrees with the ET that no reasonable adjustment was possible since my frined did not accept the down grading. My friend argued theres no clause in the contract that they can downgrade him witout following a contractual procedure. He wondered how can a employer use objective justification for a non disability factor which should be addresssed through disciplinary course. we got wait for sometime to see EAT's decision on point of law. Cheers all Judgment is preserved.
  11. its medical equivaent ie in NHS trust contractual procedures. The erformance issue was not a serious one for the employer to invoke any competencey/disciplinary procedure rather a traing was recommended which the emloyer failed to arrange. However, the orginating concerns were interpersonal skills and communication related and eventually he was diagnosed with having Asoerger's clearly explains his disadvantages arising from this. Yet, employer instead of invoking procedure wanted to downgrade him for under performance unconnected to his disability but using the priciple of objective justification for alegitimate aim of 'patient safety'.Our argumnet is the aim can not acheived by down grading to another clinical post in which patient will continue if the legitimate aim is a real aim and objectively considered. In other words, emloyer declines to admit that the performance issues are connected with his disability while at the same time they tempt to use the above principle applied in discrimination claim for non disability factors. Can they do so and sustain their contention in the appeal Court? Hope this explains
  12. I have some questions I am looking for clarification and I believe you can help me out. Firstly, can an employer use legitimate aim and proportionate means in issues of competence in an emloyee with no disability? for clarification if an emloyee is alleged to have deficiencies in his competence and the expressed term in his contract suggest that the employer has only option to deal with that through the professional competence procedure in the contract, can the emloyer use this objective justification in the tribunal without resorting to the competence procedure and propose a demotion as means to the employee or alternatively a dismissal if the employee does not accept the demotion? I hope my question is clear as I wonder this principle is only applicable in discrimination if I am not wrong. Am I?
  13. Thank you very much Becky and Emmzzi for your thoughtful explaining, although ET did find that objectively justfied EAT has allowed a full hearing. I wonder what princiles we can use to show in the FH that ET has used a wrong test ie the aim is not leag/real and or the means not proportionate or appropriate and necessary. Thats where we are struggling. Any view will be highly appreciated Cheers
  14. Thank you very much for your kind inquiry and concern Emmzzi ,i am happy to give you more info Its about my friend who is fighting his case against his ex employer for disability discrimination. My friend is doing it himself and I am trying to give him moral support and draft for him various legal documnets when possible. He earleir lost his discrimination and unfair dismissal claim in the emloymnet tribunal as it found that his claims are not well founded. However, EAT( appeal tribunal) has taken his ground of appeal on discrimination in the sift to a full hearing. The ET put the burden on him rather than on the emloyer for their failing to make reasonable adjustment.It has though identified that he is covered by the Equality act of 2010 for having ASD and also that the employer did have knowledge of his disability( short report being provided by the GP). ET says as he did not provide them a full report from his specialist( in his possession) to the employer could not make the reasonable adjustment. Secondly, as he did not go to the Ocupational health on time employer could not have the medical advice to carry out, however when they finally received the same Occ H report the emloyer refused to accept it. Now, they changed their goal post and wanted him to be examined by their specialist which they could have done 8 months ago. ET acepted the employers argument and rejected Occ Health advice. ET in addressing the discrmination ground did not identify the pcp, hence did not identify the substantial disadvantage, but went on stating that employer could not make the reasonable adjustments because he did not provide the full report, did not attend the occupational health and when he did attend the ocuational helath can not make resonable adjustment as they are not specially qualified to assess ASD. Fact of the matter is the emloyer did carry out an external appraisal of my friend's performance when his disability was unknown but afterward he was diagnosed having a life long disability. the employer refused to discard the report despite of the fact that he was disable at the time of his assessment. Instead resondent insist he should take a demotion then thye will make reasonable adjustments in the demoted post. He refused demotion. ET has agreed with respondent's position. EAT accepted the appeal for hearing on the ground of discrete issues of law. Having said all in brief above my question to the learned readers is do you see what are the pcp's here that he can argue that ET has failed to consider? He was dismissed in the knowledge of his ability- is that a pcp? The emloyer continued to hold te assessment report against him which was preared without the knowledge of his disability- is that a pcp? using that report to demote him in spite of his disability- is that pcp? ET used 'Objective justification' prinple to justify employers discrimination. Can employer use ' objective justification' in competence issue due to non disability factor? It is highly appreciated for your valuable comments. thank you in advance for your kind support..
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