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Demotion - Possible Disability Discrimination (Long one, sorry)

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First, a bit of background. I was diagnosed with bipolar disorder about eight years ago. I am relatively stable on medication, with a couple of "minor" episodes a year. I have not been hospitalised. I average about 30 sick days a year, and have for the past five or six years. Nothing has changed recently.

I joined my employer as a supervisor in December 2007. I was open with them about the bipolar from the start, and was seen by the firm's Occupational Health Doctor before my offer of employment was confirmed. This was my first supervisory position and I found it pretty tough going. I was in a department I'd never worked in, supervising a team of 15 people. This was the biggest team in the firm. As well as being a supervisor, I also performed the same role as the people I supervised.

My employment was confirmed at the end of my three month probation period and in my first appraisal I was given a 3 (good performance across all areas). I knew that there were areas where I could improve, and regularly met with my Line Manager to see how we could improve on these. I asked for training on areas where I felt I needed improvement, and worked hard to do my job. I had "issues" with one of the people I worked for, but was not the first and will not be the last to struggle to work for him!

A year ago, I changed department to one where I had previous experience, still as a Supervisor. I felt that I was doing very well in this department, I enjoyed the job and had learned from some of the errors I'd made in my first role. I have a very good relationship with the people I work for.

Health wise, my bipolar was the same as always, but I was also diagnosed with ME at around Easter time, following an autumn/winter where I was pretty much constantly on antibiotics, culminating in pneumonia at Christmas. This hit me pretty hard, I found things very hard going physically. I was very tired, not sleeping properly etc.

I was still having regular catch ups with my Line Manager, and these seemed to be going well. In my appraisal this year, I was again given a 3. There were areas to improve, and I was given LOTS of objectives, which I started to work towards.

In August/September this year, everything got to me a bit. I was in the process of appealing a DLA decision, moving house, trying to sort my finances out etc. My Line Manager/HR suggested that I take a temporary step back, and give up the Supervisor role for a three month period, so that I could focus on doing the base job properly, get my confidence back and start having some positive feedback. At first I didn't want to do this but then agreed. The three month period was due to end in mid-December. My Line Manager and I agreed that the tasks would be phased back to me at this point, rather than all dumped on me in one go.

I had a blip with my bipolar during this period – I was off work for a week and a half, signed off by my GP. During my return to work interview I said that I didn't want the supervisor job back. This was at the beginning of November.

A couple of days later I caught up with my Line Manager again and said that I had changed my mind, and that I did want to do the Supervisory job again. However, I said that I'd rather wait until mid-January as I am undergoing a major medication change over Christmas and should be back on form by mid-January.

I had discovered that two of my medications were clashing with each other, making my bipolar symptoms (mood swings) appear worse than they are. With the full support of my GP I am coming off all medication because we have doubts over my diagnosis! I have told work that there are going to be changes, but not the reason why. I have chosen Christmas to make the changes as then if there are any side effects, I am at home for a couple of weeks and don't need to have any time off sick. I have cut my medication in half in preparation for this and am feeling fabulous, much more in control and less muggy headed.

I then received a meeting appointment from the HR Manager to discuss my previous conversation with my Line Manager.

I went into this meeting ready to discuss how the hand back of my role will happen, the fact that I'm feeling much better, and that I'm ready to face the world.

The first thing I was asked was how I was feeling about taking on the Supervisor role again. I said I was really looking forward to it and ready for the challenge. I was then told, in no uncertain terms, that I will not be getting the Supervisor role back, that Occupational Health (who I had a two minute call with a couple of days previously when I said I was feeling well) could not support it and therefore the firm would be keeping me at the lower level.

Obviously, I got upset but carried on with the meeting. I tried to explain the changes that had already happened and that I expected good things. However, I was told that the decision had been made but "don't worry, we won't be reducing your salary".

I was then told that my Supervisory job had already been offered to someone else, but that if I proved myself over the next six to twelve months then if a similar position becomes available (there are four in the office) then I could apply – but that they couldn't guarantee I would be given it.

I have asked the HR Manager for the firm's reasons in writing and she says I'll have these at the end of the week.

I'm sorry for the essay but once I started writing this, it all seemed to flow. What I'd like to know is (a) whether they can actually take my job away from me and promote someone into my position, (b) what I can do about this, bearing in mind I'd like to remain with the firm – not least because there aren't any other jobs out there- without rocking the boat too much or © what my next steps should be.

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Two points spring to mind.

Firstly your employer is likely to argue they are keeping you on reduced responsibilities out of concern for your health as they are required to do under the H&S act.

Secondly they would argue that by not reducing your salary you have not suffered any detriment.

I must admit it sounds pretty reasonable to me

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Hi there. I'm sorry, I have to agree with cynic; from the outside, it looks as if they're being fair.

 

It must be very upsetting for you, but they do appear to be trying to act in your best interests. I would think they're aware of the DDA, as they seem to be following procedures in their other dealings with you.

 

I hope that you will have a good 12 months and be restored to a supervisory capacity.


Illegitimi non carborundum

 

 

 

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From what you said in your post, I think your employer is acting reasonably.

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I have to agree - I know it may not be what you want to hear.

 

Under DDA your employer has to make "reasonable" allowances to help you manage your disability and I believe they would be able to successfully argue that they are showing their duty of care as an employer and under DDA.

 

As they are not curtailing your wages then there is no financial loss and they will allow applications in the future - I would say I wish all employers were being as understanding as yours appears to be.

 

You have to appreciate at 30 days off a year some companies would have gone through sickness procedure stages and terminated employment.

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Thank you all for that.

 

I get that the firm are acting "reasonably" by not having followed the capability procedures or not firing me for having so much time off sick. However, that doesn't change the fact that they want to demote me, for reasons I believe are linked to my disability.

 

I guess what I want to know now is what procedure they have to follow to do this - can they just say "you're demoted, now get on with it" or do they have to follow a procedure similar to the disciplinary one?

 

I had a read of our "diversity" procedure today and the following points jumped out at me (my bolding) - could any of this help me?

 

We are committed to: making reasonable adjustments to prevent employees, members, directors or clients who are disabled from being at a disadvantage in comparison with those who are not disabled.

Equal opportunities in employment

We will avoid unlawful discrimination in all aspects of employment including recruitment, promotion, transfers, opportunities for training, pay and benefits, grievance and disciplinary processes, demotions, selection for redundancy, dress code, references, bonus schemes, work allocation and any other employment related benefits.

Person and job specifications will be limited to those requirements that are necessary for the effective performance of the job. Candidates for employment or promotion will be assessed objectively against the requirements for the job, taking account of any reasonable adjustments that may be required for candidates with a disability. Disability and personal or home commitments will not form the basis of employment decisions except where necessary.

We will make reasonable adjustments to our standard working practices to overcome barriers caused by disability.

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See my previous post,

They are likely to contend that the added responsibility may be detrimental to your health given your condition, and that they are making reasonable adjustment to promote your wellbeing. They could contend thier duty of care under the 1974 act legally compels them to do so.

If you feel you are being discriminated against then your companies grievance procedure is your first step.

Beware tho, ultimately you may decide to take the complaint to the employment tribunal where I'm fairly sure you would lose from what you've posted.

Keeping your salary above the rate for the job they now ask you to do will not be accepted as a detriment.

The only apparent detriment is loss of status?

 

The key phrase there is "unlawful discrimination" preventing you from being in a situation that could make you ill would not be unlawful

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