Any experts RE DDA

[dori2o]

In the past 18 months I have has a total of 192 days sickness abscence due problems with my knee.

 

I am in pain everyday, it's pointless taking painkillers as they do not work, even the strong ones.

 

I have a torn non-functional Anterior Criciate Ligament, but the consultant fgeels that this is not the cause of the pain or swelling or locking/slipping of the knee.

 

The last time I saw him, just after I had been to hospital for yet another arthroscopy, he told me that as I had had a problem with my knees for the past 14/15 years, it was his opinion that I will always suffer from this condition, even after having a cruciate ligament replacement.

 

I have been put on a formal review at work due to the amount of time I have been abscent, although the only reason for being off is due to my knee, nothing else, not even a false sickie after a wild night out.

 

It is my understanding that under the DDA (disability Discrimination Act), anyone who has been diagniosed with a condition that affects their day to day activities/life, and this condition is unlikely to improve/ unlikely to recover from, they can be given certain discretions when it comes to needing time off from work due to their problem.

 

Can anyone give any advice if I have this right, or am I barking up the wrong tree.

 

I am going to see the consultant on Friday, and was going to ask him to put what he said to me in writing so I can show it to my manager and hopefully, be considered under the DDA and have the disiplinary mark removed.

 

Any help please.

[Ell-enn]

Hi there, this must be a very distressing time for you especially as you are suffering constant pain. Hopefully the following information will answer some of your questions:

 

If you are in work and become disabled

If you are in work and become disabled through illness, an accident or a medical condition, you may be worried about returning to work or whether your employer has an obligation to keep your job open for you.

 

Time off from work

Employers do have responsibilities towards their employees and this includes managing both planned and unplanned sick leave - and helping their staff plan a return to work.

If you take time off, try to keep in touch with your employer during the time you are away from work.

This may include:

• keeping in regular contact
  
• asking to be kept up to date with what's happening at work
  
• asking about your colleagues
  
• asking for reassurance that details about your illness or disability remain confidential, if that's what you want

This should help you feel less isolated and lessen any worries you may have about taking time off and/or returning to work.

There is no obligation for you to disclose a disability - it is your own decision. However, if you do not let your employer know about your disability they will not be able to consider whether there are adjustments they could make at work to help you to return.

 

Statutory Sick Pay

If you are an employee and unable to work because you're ill, you may be able to get Statutory Sick Pay (SSP). Some employers have their own sick pay scheme instead.

If you're still unable to work after 28 weeks, you can apply for Incapacity Benefit.

 

Keeping your job open

Your employer should not put pressure on you to resign because you have become disabled. Dismissing someone simply because they become disabled is likely to be direct discrimination which is unlawful.

You employer should consider whether there are changes that they could make at work to enable you to carry out your job. These are known as 'reasonable adjustments'. Reasonable adjustments may include things like:

• a phased return to work – perhaps working flexible hours or part-time
  
• time off each week for medical treatment or counselling
  
• allocating to another employee some tasks that can no longer be done easily by you
  
• providing practical aids and technical equipment for you

Businesses and organisations vary in structure and size, so what may be 'reasonable' for one may not be so for another.

Depending on your disability, a return to the same role may not be appropriate.

Your employer could speak to a Disability Employment Adviser at a Jobcentre Plus office to understand their responsibilities towards employees who are, or who have become, disabled and to discuss a solution to any problems there may be. This could include the 'Access to Work' scheme.

 

Planning to return to work

Discuss with your employer how they, and you, will manage helping you to return to work.

If you and your employer agree to formally let other people know about your disability (which may be a 'hidden' disability such as diabetes or a mental health condition) you should sign a consent form which gives your employer permission to tell one or more named individual(s). This is to comply with the Data Protection Act.

 

Performance reports, records and promotion

If you have to take time off for disability-related sick leave, it is good practice for your employer to record it separately from any sick absences which are not related to your disability.

If you are away from work because you are waiting for your employer to put reasonable adjustments in place, or for training in their use (for example, a computer screen-reader), this should not be recorded as an 'absence from work'.

 

 

For more in depth information visit Website of the UK government : Directgov

 

What is Classed as a Disability?

The definition of disability in the Disability Discrimination Act is a physical or mental impairment which has a substantial and long-term adverse effect upon a person's ability to carry out normal day-to-day activities. This includes for example:

• Sensory impairments (such as those affecting sight & hearing)
  
• Physical impairments (e.g. wheelchair users or someone with severe back pain)
  
• Specific Learning Difficulty such as dyslexia or dyspraxia
  
• Conditions relating to mental health, such as depression, Schizophrenia, Obsessive Compulsive Disorder
  
• Severe facial disfigurements
  
• Medical conditions such as epilepsy or diabetes
  
• Progressive medical conditions (e.g. Cancer, HIV infection and Multiple Sclerosis)
  
• Forms of Autism (e.g. Asperger Syndrome)
  
• Conditions which are characterised by a number of cumulative effects such as pain or fatigue (e.g. ME)
  
• Muscular Skeletal conditions, such as RSI, Carpal Tunnel Syndrome
  
• A past history of disability

This is not a comprehensive list and there are many more conditions which could be classed as a disability.

A person's condition must be 'long term' which means it must be expected to last at least 12 months or for the rest of a person’s life. So for the purpose of the Act someone who breaks an arm will not be disabled if the injury is likely to heal within a year.

 

Obviously you will need to discuss with your consultant the possibility of being classed as disabled - he will be able to guide you through the process .

 

I hope this has been helpful. Please keep us updated on your situation and if you need any further help don't hesitate to ask.

 

Kind Regards

 

Ell-enn

[Boabc8]

Hi There,

I’m actually a Director of an Occupational Health Company so I may be able to give you some help.

As you have not been suffering from this condition for more that one year you will not be considered under the DDA. There is, obviously other options such as Ill Health Retirement but an Occupational Health Physician would make this decision.

I’m keen to learn if your employer has discussed re-deployment with you or if you have actually seen an Occupational Health Nurse/Physician. I’m sure there could be adjustment made to your working environment but before this can be done it would be in your best interest if a work station assessment was carried out. I would push your employer to carry out a risk assessment to see if your job may be aggravating your condition and establish if any changes could be made to accommodate your illness.

If I can be of any further assistance feel free to ask.

Robert

[Chris_w]

Hi There,

 

I’m actually a Director of an Occupational Health Company so I may be able to give you some help.

 

As you have not been suffering from this condition for more that one year you will not be considered under the DDA. There is, obviously other options such as Ill Health Retirement but an Occupational Health Physician would make this decision.

 

I’m keen to learn if your employer has discussed re-deployment with you or if you have actually seen an Occupational Health Nurse/Physician. I’m sure there could be adjustment made to your working environment but before this can be done it would be in your best interest if a work station assessment was carried out. I would push your employer to carry out a risk assessment to see if your job may be aggravating your condition and establish if any changes could be made to accommodate your illness.

 

If I can be of any further assistance feel free to ask.

 

Robert

 

You don't have to be suffering with the complaint for 1 year to qualify under the DDA. If it can be proved via your doctor that the condition will last for more than one year then you do Qualify as disabled under the act, and your employer must make reasonable adjustments.

[Boabc8]

You don't have to be suffering with the complaint for 1 year to qualify under the DDA. If it can be proved via your doctor that the condition will last for more than one year then you do Qualify as disabled under the act, and your employer must make reasonable adjustments.

 

 

Hi,

I think you may have miss understood me what I said was "As you have not been suffering from this condition for more that one year you will not be considered under the DDA"

What I was saying is that she would need to be suffering from non-functional Anterior Criciate Ligament for at least year before she would qualify under the DDA. The DDA is not that clear as to what is classed as a disability and with this type of injury they like to wait for one year. The reason for this is that it is “impossible” to prove how long this will last.

If you read the first (original) post it also states “the consultant feels that this is not the cause of the pain or swelling or locking/slipping of the knee”. In order to qualify under DDA you need to suffer from a named condition and at this stage the consultant is obviously not 100% what is the cause. If the consultant is not sure then it is unlikely that he will be able name the condition, which is the route cause of the problem.

I apologies if I come across argumentative this is not my intention I just wanted to clear up which I feel is a misunderstanding.

Robert

 

[davjoh]

Hi there

 

I have a good wealth of knowledge on the DDA, it would be helpful if you could post up some more info and I can look at your situation from there.

 

1. About your job

 

What tye of job do you do?

What are your duties?

How many hours do you work each week?

Is your employer public or private sector?

 

2. About you and your disability

 

What is the name of your condition?

When did you first start to suffer?

When were you diagnosed?

How does it affect you - in what ways are you limited or restricted that you wouldnt be if you did not have the condition?

What medication/treatment (eg physio) have you been prescribed?

Do you have any other conditions or problems? How do thy affect you?

Do you recieve any benefits such as DLA? Have you applied?

 

3. About your communications with your employer

 

Are they aware of your condition and how it affects you?

Have you asked for any adjustments?

Have they suggested any adjustments or attempted to investigate any?

At what stage in the disciplinary process are you at?

How were your absences notified? Did you provide sick notes etc.?

Is your condition exacerbated at all by work?

 

Please do let me know anything else that is relevant too. If you're not comfortable giving info in the forum, PM me. Bear in mind however that my response will be in the open forum.

 

Davjoh

[davjoh]

I think you may have miss understood me what I said was "As you have not been suffering from this condition for more that one year you will not be considered under the DDA"

 

What I was saying is that she would need to be suffering from non-functional Anterior Criciate Ligament for at least year before she would qualify under the DDA. The DDA is not that clear as to what is classed as a disability and with this type of injury they like to wait for one year. The reason for this is that it is “impossible” to prove how long this will last.

 

If you read the first (original) post it also states “the consultant feels that this is not the cause of the pain or swelling or locking/slipping of the knee”. In order to qualify under DDA you need to suffer from a named condition and at this stage the consultant is obviously not 100% what is the cause. If the consultant is not sure then it is unlikely that he will be able name the condition, which is the route cause of the problem.

 

I apologies if I come across argumentative this is not my intention I just wanted to clear up which I feel is a misunderstanding.

 

Robert

 

Hi Rob, and thanks for your contribution. Nobody feels you're being argumentative - dialogue on these things only serves to help! Anyways I digress.

 

I have to say I disagree with your stated position, even in light of your expansion.

 

The definition of disability under the DDA is 'a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day to day activities'.

 

The physical or mental impairment does not have to be a specific named condition. The current case law backs this up - McNicol vs. Balfour Beatty (2002) held that, for the purposes of defining disability, 'impairment' has its normal meaning. The Dictionary defines impairment, amonst others, as 'inability due to physical or mental unfitness'. Provided that the adverse effects stated by the claimant are substantial, long-term and adverse, the absence of a named condition would be irrelevant if it is clinically supported that an impairment exists. Furthermore Millar v Inland Revenue Commissioners (2005) states that 'Physical impairment can be established without reference to causation and, in particular, without reference to any form of "illness".

 

The OP states that the absences have occured over the course of 18 months, and makes reference to the discussion of her symptomology over 14-15 years prior to this. Prima facie the OP meets the 'has lasted, or is likely to last at least 12 months' threshold.

 

The only test now as to the applicability of the DDA to the OP is looking at their functional limitations, which we should be able to do once they post back from my other reply.

 

Davjoh

[Boabc8]

Hi Rob, and thanks for your contribution. Nobody feels you're being argumentative - dialogue on these things only serves to help! Anyways I digress.

 

I have to say I disagree with your stated position, even in light of your expansion.

 

The definition of disability under the DDA is 'a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day to day activities'.

 

The physical or mental impairment does not have to be a specific named condition. The current case law backs this up - McNicol vs. Balfour Beatty (2002) held that, for the purposes of defining disability, 'impairment' has its normal meaning. The Dictionary defines impairment, amonst others, as 'inability due to physical or mental unfitness'. Provided that the adverse effects stated by the claimant are substantial, long-term and adverse, the absence of a named condition would be irrelevant if it is clinically supported that an impairment exists. Furthermore Millar v Inland Revenue Commissioners (2005) states that 'Physical impairment can be established without reference to causation and, in particular, without reference to any form of "illness".

 

The OP states that the absences have occured over the course of 18 months, and makes reference to the discussion of her symptomology over 14-15 years prior to this. Prima facie the OP meets the 'has lasted, or is likely to last at least 12 months' threshold.

 

The only test now as to the applicability of the DDA to the OP is looking at their functional limitations, which we should be able to do once they post back from my other reply.

 

Davjoh

 

Hi Davjoh,

Many thanks for your response I again have to disagree with some of the points raised.

There are several references to previous cases and this is always the wrong way to look at things as no two cases are ever the same. I think what is important is to concentrate on wither a medical professional would support the DDA, which at this stage I do not think they would. In every case it has to be clinically supported and with this condition I don’t they would support it at this stage.

There is one key point and that is Dori20 is still to undergo cruciate ligament replacement and it’s my belief that no decision would be taken until after this point. Any medical professional with a duty of care would want to ascertain if there has been any improvement prior to considering the DDA.

Although the consultant believes this may no solve the problem they would want to wait to ensure that his/hers theory is correct. The reason why I’m aware of this is because we recently dealt with a case that was extremely similar.

I take on board many of your comments but I feel that I’m not going to be able to understand your view point.

Robert

[davjoh]

Hi Davjoh,

 

Many thanks for your response I again have to disagree with some of the points raised.

 

There are several references to previous cases and this is always the wrong way to look at things as no two cases are ever the same. I think what is important is to concentrate on wither a medical professional would support the DDA, which at this stage I do not think they would. In every case it has to be clinically supported and with this condition I don’t they would support it at this stage.

Reference to previous cases is the right way to look at things. The two cases were taken to the Court of Appeal and set a precedent for the interpretation of the DDA. The medical facts may differ on a case-by-case basis, however the interpretation of the law does not, it is established. Had you referred to the cases, you would note that it was held in the two cases that the appellants did not in fact have disabilities under the DDA, however they did set several important tests as to establishing a disability. Furthermore, it is not the role of a clinician (be they a GP, Occ Health Nurse or Occ Med Consultant to state if a person is disabled under the DDA. They are simply not qualified to do this. Their role is to assess the functional limitations of a condition. The DDA is a question of law.

 

There is one key point and that is Dori20 is still to undergo cruciate ligament replacement and it’s my belief that no decision would be taken until after this point. Any medical professional with a duty of care would want to ascertain if there has been any improvement prior to considering the DDA.

When a claim of Disability Discrimination is made, the test of disability is assessed based on the presentation of the symptomology and functional limitations on the occasion that the alleged discrimination occured (see Latchmann vs. Reed Business Information, 2002 EAT). The DDA may not apply following the operation if its is sufficiently successful to end the substantial, adverse and long-term affects of the disability (and I hope for the OP that it is), but it certainly does now. Furthermore, the DDA may apply regardless of the above if the employer has not engaged in reasonable attempts at discovery and investigation following a disclosure of disability - the employer has not acted reasonably in such circumstances.

 

Although the consultant believes this may no solve the problem they would want to wait to ensure that his/hers theory is correct. The reason why I’m aware of this is because we recently dealt with a case that was extremely similar.

Again, see above. The assessment is based on current information. If an improvement occurs after the operation it is a relevant factor after the operation, not before.

You may have dealt with a case recently that was extremely similar. Unless it went to Court or an ET and the pertinent points were argued, it's irrelevant. Many employees dont argue their rights about the DDA very well, often through ignorance. There is an abundance of willingness to accept what work says at face value. That is what this thread is all about. Its quite amusing too that you're telling me at the top of the post that other cases arent relevant, yet the fact that you have one that supports your position (with no details posted) is relevant...

 

I take on board many of your comments but I feel that I’m not going to be able to understand your view point.

I assume you mean that you don't accept my viewpoint, rather than you don't understand it. I respect that, we are all entitled to our opinions. To be fair, I'm more interested that the OP does understand.

 

Robert

 

Davjoh

[GlasweJen]

I must say that I believe Davjoh to be correct, law cannot be applied retrospectively i.e you can't say "because person X was treated with this and it didn't work then he was actually disabled for all those years before we tried the treatment". It should also be noted (and i was told this by a tribunal) that you should discount the effects of any medications when discussing a disability for DDA purposes, for example when I write about NCS I should not write that I do not feel dizzy because without fludrocortisone I would.

[Boabc8]

Davjoh

 

Hi,

Many thanks again for your comments.

As I mentioned before I feel that I’m not going to be able to understand your view point as it differs from my understanding. As you may appreciate I have worked and continue to work in an industry were the DDA is very important.

Although I accept that my opinion/understanding may not always be correct I would like to think that my experience of dealing with the DDA gives me a good deal of knowledge.

I am aware that it is not the GP, Occ Health Nurse or an Occ Physician that would decide but they would most likely be involved in the process. I do take on board your comments that I sad other cases aren’t relevant then spoke about a similar case. I also noticed that you said ”the fact that you have one that supports your position (with no details posted) is relevant” Obviously due to various acts I would not be allowed to post such details as it refers to a patient that our company has seen and therefore it would breach patient confidentiality. I hope that you can accept this is my only and “sole” reason for not publishing details.

I would be interested to establish were you gained your knowledge of the DDA as I do accept that you do have a degree of knowledge of what is involved.

Robert

[Boabc8]

I must say that I believe Davjoh to be correct, law cannot be applied retrospectively i.e you can't say "because person X was treated with this and it didn't work then he was actually disabled for all those years before we tried the treatment". It should also be noted (and i was told this by a tribunal) that you should discount the effects of any medications when discussing a disability for DDA purposes, for example when I write about NCS I should not write that I do not feel dizzy because without fludrocortisone I would.

 

Hi Jenschnifer,

Many thanks for your comments.

I wasn’t saying that Davjoh was incorrect, I was only pointing out that I disagreed with some of the statements that were made. I do agree that law cannot be applied retrospectively but when cases are heard they don’t tend be based on the outcome/decision of previous cases.

It may worth noting that a company I used to work for used to put references to previous cord cases on advertisements. It was only when the company employed a lawyer that he said to remove these as they are irrelevant.

It will be interesting to find outcome of this case but I do hope for the OP that the DDA does apply as I’m sure it would offer great comfort.

P.S. This will be my last post on this case as I don’t believe further posts will be of any assistance to the OP. It also my belief that sometimes it’s best to say I agree to disagree and move on.

Robert

[davjoh]

Hi,

 

Many thanks again for your comments.

 

As I mentioned before I feel that I’m not going to be able to understand your view point as it differs from my understanding. As you may appreciate I have worked and continue to work in an industry were the DDA is very important.

 

Although I accept that my opinion/understanding may not always be correct I would like to think that my experience of dealing with the DDA gives me a good deal of knowledge.

 

I am aware that it is not the GP, Occ Health Nurse or an Occ Physician that would decide but they would most likely be involved in the process. I do take on board your comments that I sad other cases aren’t relevant then spoke about a similar case. I also noticed that you said ”the fact that you have one that supports your position (with no details posted) is relevant” Obviously due to various acts I would not be allowed to post such details as it refers to a patient that our company has seen and therefore it would breach patient confidentiality. I hope that you can accept this is my only and “sole” reason for not publishing details.

 

I do accept the point in principal.

 

I would be interested to establish were you gained your knowledge of the DDA as I do accept that you do have a degree of knowledge of what is involved.

 

As a Disabled person who has had cause to file over six DDA cases to date (100% success rate), with a masters in disability and occ safety/health, experience as an advocate for disabled people. Us cripples have an amazing vested interest in the DDA! (If Ouch! can say it, so can I!)

Robert

 

Davjoh

[dori2o]

Hi there

 

I have a good wealth of knowledge on the DDA, it would be helpful if you could post up some more info and I can look at your situation from there.

 

1. About your job

 

What tye of job do you do? Office work

What are your duties? Call centre operative

How many hours do you work each week? 37

Is your employer public or private sector? Public

 

2. About you and your disability

 

What is the name of your condition? This is the problem, no name for the condition, i am suffering at the moment from a Non Functional Cruciate ligament, but the consultant has stated that it is not the ligamnent that is causing the pain. During the last Arthroscopy he looked all around the knee and can find no reason for the pain. It is his opinion, as somebody who deals with hundreds of knee's every year, that the pain is unlikely to ease off, even by having the reconstruction.

When did you first start to suffer? My knee problems started in around 1992/93, I was diagnosed with a lax cruciate ligamnent in 1999 for which physio was prescribed- after I went home a couple of weeks into the physio in crippling pain I stopped going, continued to have pain, but lived with it as it was mild. In March 2006 the pain got to the point where I could not walk, I saw another consultant who performed another arthroscopy in August 2006, and he diagnosed a non functional cruciate ligament which had a large tear in it. this consultant passed me to a collegue who is a knee specialist as he is more of a hip specialist. I was also again advised to go to physio.

So consultant 3, sent me for an MRI in May 2007- the results were inconclusive, he performed another arthroscopy in September 2007 and again the diagnosis was a torn non functional cruciate ligament. It was decided that I should stop physio at this point, and on November 2nd I waas put onto the waiting list for the reconstruction

When were you diagnosed? as above

How does it affect you - in what ways are you limited or restricted that you wouldnt be if you did not have the condition? It all depends on how bad the pain is day to day, if the pain is as it normally is, it's hard to walk, can't sit down too long, and in pain all day, even when using painkillers.

If the pain is bad, it is almost impossible to walk, lie down, sit down, it is just unbearable.

What medication/treatment (eg physio) have you been prescribed? As above (Physio) and have tablets (Kapake)

Do you have any other conditions or problems? How do thy affect you? none

Do you recieve any benefits such as DLA? Have you applied? I have applied when I fuirst got bad last year, but they rejected my claim as even though I am in pain when i walk, I can walk aided for more than 100m.

 

3. About your communications with your employer

 

Are they aware of your condition and how it affects you? They have been kept fully aware, ever letter to and from the hospital, discussed every appointment, given information from the internet about what exactly is a non functional ACL.

Have you asked for any adjustments?Only that they be patient with my time off.

Have they suggested any adjustments or attempted to investigate any? They did at first give some discretion on the sickness, this was stopped in March this year.

At what stage in the disciplinary process are you at? Final

How were your absences notified? Did you provide sick notes etc.? Had a sick note for every period of sickness

Is your condition exacerbated at all by work? it can be if I sit down all day, but I do get up and walk around just to keep the blood flowing, but it's getting to and from work that is the problem. 1 mile awalk almost from the station to work.

 

Please do let me know anything else that is relevant too. If you're not comfortable giving info in the forum, PM me. Bear in mind however that my response will be in the open forum.

 

Davjoh

Many thanks

[davjoh]

Just a few things I wish to clarify...

 

1. About your job

 

What tye of job do you do? Office work

What are your duties? Call centre operative

How many hours do you work each week? 37

Is your employer public or private sector? Public

 

2. About you and your disability

 

What is the name of your condition? This is the problem, no name for the condition, i am suffering at the moment from a Non Functional Cruciate ligament, but the consultant has stated that it is not the ligamnent that is causing the pain. During the last Arthroscopy he looked all around the knee and can find no reason for the pain. It is his opinion, as somebody who deals with hundreds of knee's every year, that the pain is unlikely to ease off, even by having the reconstruction.

 

When did you first start to suffer? My knee problems started in around 1992/93, I was diagnosed with a lax cruciate ligamnent in 1999 for which physio was prescribed- after I went home a couple of weeks into the physio in crippling pain I stopped going, continued to have pain, but lived with it as it was mild. In March 2006 the pain got to the point where I could not walk, I saw another consultant who performed another arthroscopy in August 2006, and he diagnosed a non functional cruciate ligament which had a large tear in it. this consultant passed me to a collegue who is a knee specialist as he is more of a hip specialist. I was also again advised to go to physio.

So consultant 3, sent me for an MRI in May 2007- the results were inconclusive, he performed another arthroscopy in September 2007 and again the diagnosis was a torn non functional cruciate ligament. It was decided that I should stop physio at this point, and on November 2nd I waas put onto the waiting list for the reconstruction

When were you diagnosed? as above

How does it affect you - in what ways are you limited or restricted that you wouldnt be if you did not have the condition? It all depends on how bad the pain is day to day, if the pain is as it normally is, it's hard to walk, can't sit down too long, and in pain all day, even when using painkillers.

If the pain is bad, it is almost impossible to walk, lie down, sit down, it is just unbearable.

I understand you have variations in your condition, but could you indicate the following:

 

You say it's hard to walk - do you use a cane or something similar to support yourself?

Have you ever fallen or had your legs give way? If so, how often does this happen?

How far can you walk before you feel severe discomfort? How long does it take you to walk this far?

How long can you sit still for before you have too much discomfort?

What would happen if you tried to sit for longer than this - how would it affect you? Does it affect your concentration, for example, or your mood?

What medication/treatment (eg physio) have you been prescribed? As above (Physio) and have tablets (Kapake)

Do you have any other conditions or problems? How do thy affect you? none

Do you recieve any benefits such as DLA? Have you applied? I have applied when I fuirst got bad last year, but they rejected my claim as even though I am in pain when i walk, I can walk aided for more than 100m.

 

3. About your communications with your employer

 

Are they aware of your condition and how it affects you? They have been kept fully aware, ever letter to and from the hospital, discussed every appointment, given information from the internet about what exactly is a non functional ACL.

Do you have a paper trail - copies of minutes of meetings, letters sent/received etc? Try and get everything together.

Have you asked for any adjustments?Only that they be patient with my time off.

Have they suggested any adjustments or attempted to investigate any? They did at first give some discretion on the sickness, this was stopped in March this year.

At what stage in the disciplinary process are you at? Final

How were your absences notified? Did you provide sick notes etc.? Had a sick note for every period of sickness

Is your condition exacerbated at all by work? it can be if I sit down all day, but I do get up and walk around just to keep the blood flowing, but it's getting to and from work that is the problem. 1 mile awalk almost from the station to work.

Why do you walk this distance - is public transportation available for it?

Please do let me know anything else that is relevant too. If you're not comfortable giving info in the forum, PM me. Bear in mind however that my response will be in the open forum.

[dori2o]

I understand you have variations in your condition, but could you indicate the following:

 

You say it's hard to walk - do you use a cane or something similar to support yourself? when the pain is bad I use a stick

Have you ever fallen or had your legs give way? If so, how often does this happen? My knee gives way regularly, at least once a week.

How far can you walk before you feel severe discomfort? How long does it take you to walk this far? I feel discomfort all the time

How long can you sit still for before you have too much discomfort?

No longer than an hour

What would happen if you tried to sit for longer than this - how would it affect you? Does it affect your concentration, for example, or your mood? It will affect my concentration as all i think about is the pain, when it is bad I get quite depressed, but if, as was the case at the cinema the other month, I was to sit for long periods, the pain becomes unbearable, when it comes to standing then I can't put any weight on my knee for 4-5 hours.

Do you have a paper trail - copies of minutes of meetings, letters sent/received etc? Try and get everything together. I have kept everything.

Why do you walk this distance - is public transportation available for it? There is no bus that takes a direct route to work from the station, I could get a bus to approx halfway, but that would make me late.

[davjoh]

Based on the information you've given, I am more than satisfied that you are a disabled person under the DDA. I will therefore move onto circumstances and situation.

 

The reasonable adjustment you requested was flexibility with disability-related absence. Your employer was agreeable to this initially but has since disciplined you. This disciplinary action amounts to less favourable treatment.

 

I imagine that your employers position is that they discipline anyone who has the amount of sickness absence you have had. This is direct discrimination.

 

Clark vs. Novacold (1999)

This case established that the test for less favourable treatment is not how the employer treated you compared with how they would treat a non-disabled person with the same amount of absence, but how they would treat a person who had not been absent at all. The logic beingthis: Clark was disabled, therefore he could not work and therefore he was dismissed. He was dismissed for the reason that he could not work and a comparison should be made with someone to whom that reason does not apply - in other words someone who can work.

 

Would your employer have disciplined an employee who had not been absent? The answer is no.

 

Can they justify having disciplined you? In order to justify it, they need to investigate making every other adjustment that is reasonable.That is to say, they have to have done everything that is reasonable before they can discipline you. This is to ensure you are on an equal footing with a non-disabled employee.

 

Your employer has not made any efforts to establish reasonable adjustments, and so cannot justify the less favourable treatment.

My next line of argument may acutally be of more interest to you still...

did your employer pay you full pay whilst you were absent, or sick pay?

 

Nottingham County Council v Meikle (2004, IRLR 703)

This case established that when an employer has failed to make reasonable adjustments, resulting in absence from work, it is a reasonable adjustment to pay the employee at their full rate of pay. The logic being that had the employer made the required adjustments, the absence would not be necessary, and the employee would not have suffered financial loss as a result.

 

I would point out this specific case relates to a constructive dismissal, so may be more pursuasive than precedent. It is certainly a point to consider though.

The next thing to consider is what adjustments would be reasonable. Speaking in general terms, I would expect the following may be reasonable in the circumstances.

• Is it feasible to facilitate working from home? Given that your main problem is mobility this would mitigate your problems with travelling to work. If not, it may be reasonable to pay the costs of travelling by taxi to and from the station. (Also, google for Access to Work, and look for travel to work).
  
• Providing extra breaks (with pay) to enable to move around to prevent joint stiffening.
  
• Providing a workstation at which you can both stand and sit, so you can move around whilst performing your job.
  
• Providing annual disability leave (with pay) to enable additional rest away from work.

These are just of the top of my head; knowing your condition I'm sure you can think of things that would be helpful. You are the best person to say what you need.

 

Once all of the reasonable adjustments are in place, your employer can look at discipline if you are absent, because you are on an equal footing.

 

For example, if you were working from home and had 192 days absence in 18 months, given that your main issue is with travelling into work, it would probably be reasonable to discipline since the less favourable treatment is justified - you have been put on an equal footing with a person who is not disabled.

 

What to do now

 

Write to your employer setting out your disabilities, how long you've suffered, how it affects you, and the adjsutments you would like. Do this regardless of your previous correspondence. If you post up or PM a copy I can help you fine tune it. You then have a basis for putting yourself on an equal footing with a non-disabled person.

 

Further questions

 

Now I have established the DDA covers you, we need to see if the matter is pursuable. You have six months minus one day from the date the discrimination occured to go to court or a tribunal. What is the date of your last letter relating to the disciplinary action?

 

Hope this helps

 

Davjoh

[majorclanger100]

Hi Dori2o,

 

Just subscribing and adding my best wishes for a successful outcome .

 

In case you are in doubt (and I am sure you are not!) Davjoh is providing excellent advice. I do not have nearly the experience he has (I've only been a litigant in person once at an ET for disability discrimination) but can tell you this fella knows his stuff! The DDA, and how it applies, is a minefield so this advice is worth an awful lot of time you'd otherwise be spending researching it yourself or speaking to a solicitor. Good on you Davjoh .

 

I'll follow this one with interest and hopefully might be able to contribute something useful at some point.

 

MC