Disability Discrimination

[prishan]

I am a newbee!

 

I have some queries for my mate, who has been working in UK in a large monopoly organisation for past 8 years.

 

They (employer and peers) took dislike of her from the very beginning and as such she felt being mistreated

all through yet she didn’t raise her voice for fear of escalation in to an untenable situation.

she went on rather focusing on her work but

 

few years later her employer suddenly raised concerns about her performance

short of particularising any complaints and

 

sent her for performance assessment whereby recommendation came was that she should be given training to improve

her performance and including behaviour coaching and interpersonal communication,

as team work and leadership skills considered to be affecting his performance,

hwoever there was issue with her personal conduct.

 

In spite of the recommendation, the employer failed to find the necessary training for her in almost 3 years time.

 

Now, they are asking her to take up either a downgrade or resign from her job,

alternatively they warned her about facing a competence procedure.

 

In all this time she continued to be subject to abuse and discrimination even in the current without prejudice meeting.

 

The employer kept her off work for 17 months without folowing a correct contractual procedure

and afterward brought her back to a different department in a supernumerary position for where she is for the past 12 months.

 

AS the without prejudice dialogue was dragging on without any constructive progress as the employer refused

to discuss their failing to implement recommnedation for retraining her she had to go sick off work due to stress at work caused by them.

 

Meanwhile, she spoke to me and other friends about her performance report and we felt that there is something wrong about it.

We suggested her to see an expert for an independent assessment whereby the expert diagnosed her with asperger’s syndrome

and childhood ADHD.

 

Subsequently, she informed her employer about her disability and argued the earlier assessment was wrong as at the time

she has disability and they failed to spot her disability which they should have done for the fact that the assessors

were senior medical experts.

 

She also argued that complaints and outcome results of the assessment were actually arising from her disability

as the very nature of her disability suggests the concerns about her behaviour, communication skills and teamworking.

 

Unfortunately, the employer continued to disregard her notification of her disability.

they don't even acknolwledge her disability and didn't show taking any steps towards any readjustments.

 

They continue to stick to their earlier position and fails to answer any reasonable question she did ask.

 

Furtshermore, they are disregarding her being sick due to stress they caused, although she put a grievance against

any intention to demote her and being brought to work in an entirely defferent department where the nature of job is one for a demoted.

 

Given the above

isn't the assessment wrong as it was applied at the time considering her having no disability in addition to their failure to spot it?

 

Had it been spooted at the time assessment would surely have been put on hold as it is so mentioned in the assesssors handbook.

 

Had the employer knew earlier of the disability my mate believes they couldn't sent her for assessment

instead they had to look into readjustments.

 

Had it been known earlier the complaints were explainable and would have been considered as arising from her disability.

 

Secondly, can they invoke sickness procedure whereby they can either dismiss her or reduce her pay in spite of her being sick due to stress caused by the employer themselves.

 

Can you please advice me?

 

I will be grateful for all your comments. she needs some good support and needs to know where she stands in the eyes of law.

 

She is by now quite devastated from the length of period of misery she is going through.

 

She always thought that UK is the place on earth where fairness and justtice prevails over everything!

 

Her beliefs are getting shattered with each day as it passes.

 

She tried to obtain help from her unions but found them talking in the tune of the employer.

 

She feels betrayed by them!

Prishan

Edited October 26, 2011 by prishan

[rebel11]

Hi pris

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available. Here are some questionnaires that your friend could send to her employers. If your friend does send these, I would send them to the HR Department at the companies Head Office. I

would also visit a CAB office for advice on these matters before sending the following, (if you do send them, send them Recorded):-

 

How to use the questionnaire procedure in cases of disability ...

 

RR65 form

[prishan]

Hi rebel. thank you for so quick response. Brilliant! I will tell my mate and will keep you all posted.

 

Any advice is highly appreciated from you all!

Edited October 27, 2011 by prishan

[nutter192]

I would advise sending a disability discrimination questionnaire to ask the employers questions about your mates treatment. You can get the questionnaire from the EHRC (Equality and Human Rights Commision's) website. Best thing to do is send it in with a grievance and start asking them the akward questions they want to avoid.

 

I did this on my disability discrimination case and the answers I got back were irrelevant. If the employer fails to answer this questionnaire or is too ambigoius in their repsonse this woud go against them at a tribunal.

[prishan]

I would advise sending a disability discrimination questionnaire to ask the employers questions about your mates treatment. You can get the questionnaire from the EHRC (Equality and Human Rights Commision's) website. Best thing to do is send it in with a grievance and start asking them the akward questions they want to avoid.

 

I did this on my disability discrimination case and the answers I got back were irrelevant. If the employer fails to answer this questionnaire or is too ambigoius in their repsonse this woud go against them at a tribunal.

 

hi Nutter..thanks. me and mate are following your thread for sometime! Thumbs up dude! we are really inspired by the way you dealt your and your employer. simply amazing. Your courage, determination and perseverance are laudable! will keep you posted. I will ask my mate to do what you advised.

[prishan]

To date my mate is helping herself. Couldn't rely on her unions coz' her reps always prevented her from putting up any grievance and all the time insist she has no claim.

 

Very strange! they took her subscriptions but worked as though for the employer. But, I guess she should get a proper legal support problem is she finds they are either not affordable or hard to spot the right one!

 

Can anyone up with a tips to best way to find a affordable and reliable legal help?

 

She has legal on home insurance but the problem is they are only on helpline support.

 

thanks in advance for all your advice.

[papasmurf1cx]

Hi Prishan

 

Firstly can your friend write directly to CAG on this thread or is there anything stopping her?

 

Next, it is common for unions to obstruct discrimination matters, I am not sure why, but suspect it has something to do with cost of taking matters to a tribunal. They like to 'solve' issues in the work place. However there is something your friend can do and that is to email the problem up the chain of command at the union. The workplace rep probably is not qualified in any event for dealing with such matters. Section 57 Equality Act 2010 outlaws discrimination by Trade Organisations http://www.legislation.gov.uk/ukpga/2010/15/section/57 which is what they are probably doing by failing to represent her in the manner that she wants. So find out who supervises the person who has been obstructing her and even their supervisor. Copy the most senior person at the union detailing why she thinks that the Union are colluding in the discrimination by failing to help her. The problem she will have is what happens if they just ignore her, then you have to take the matter to the ET. The problem there is that it is ancillary to the main matter which is with the employer.

 

She is right to place a grievance in and I would state that she should p[lace one in detailing the discrimination that she feels she has suffered. The mere fact that she does this will start to offer her some protection from the 'detriments' that the employer will enact upon her. She needs to gather in some medical evidence in the form of letters or reports from doctors to detail her disability and how it affects her. She needs to place a grievance in that the actions over the years have been misinterpreted and there is the evidence to prove it. She needs to detail exactly what reasonable adjustments that she considers necessary to assist her in countering the effects of her disability.

 

If she places in these grievances against the wishes and advice of the union, (this is what they do as there will be some contractual situation that the union will cite that negates membership of the union... but don't worry about that because they will not assist anyway... they don't want to. That is why eventually ET action against the union is inevitable) she will need advice to further the grievance. Ensure that the telephone advice from the help line is done by developing a relationship with a solicitor who knows the system, she can telephone asking for step by step advice in how to proceed... excellent is she has the courage to take it to a Tribunal.

 

Please get her to detail all the incidents over the years in written form so she can make a statement in due course. Needless to say, keep copies of all correspondence.

 

Employers can do anything they want to an employee because they have the money and power. They can even implement illegal action and if the union is complicit in this then the employee has little option but to capitulate or fight. If they fight, expect to lose every internal battle where the employer controls events but expect to win if you are actually right in law, but also expect increased stress levels and illness because of it.

 

It helps if she is 'supported' financially through the fight.

 

She could also try and get the incidents declared as an Industrial Injury... but be careful that series events in stress applications are viewed negatively, one has to identify one or possibly 2 at the most incident or incidents that specifically made her ill. This is helpful as the employer has to answer the DWP questions on a non fault basis. You get an idea of where they are coming from by forcing their hand in this manner. To find out what they said you have to ask the DWP for disclosure of the employers response.

 

Has she approached the relevant society / charity that exists for her condition? More specialised information may be available.

[prishan]

A heartfelt thanks to you papas for giving me a so thoughtful advice. she is hesitant to come on a public forum as she doesn't clearly know where she would stand with regard to confidentiality since she is still employed and in a without prejudice dialogue with her employer.

 

As regard the Unions, she stopped seeking their help it is now about a year as she found them in complicity with her employer and was giving her advice that went against her interests. Now her focus is entirely on her employer as they were trying to do 'detriments to her.

 

She has reported to the employer on various occasions about her disability that she has been assessed and diagnosed by an authority expert yet they never showed by any means that they now acknowledge this but referred her to OH for an assessment when she has gone on long term sick due to the stress caused by them. They kind of mix her disability up with her sickness due to stress. She is concerned if going to OH is a trap to do their assessment and attempt to dispute her specialist report while they are not recognising her disability. Any thoughts please.

 

As she hasn't yet raise a grievance in regard to her disabilty is she running out of time?

 

Or is it not the case that every time they ignore her letters regarding disability and discrimination the time clock is set back to the start? Please advice.

 

Advice from you all is highly appreciated!

and thanks again to you Papas for filling us with so brilliant info!

[papasmurf1cx]

get the grievance in specifically alleging discrimination.

 

OH work for the employer. if the OH report states she is not fit to work they will dismiss on capability. if the discrimination grievance is in and they dismiss then, then potentially she will have a victimisation claim.

 

The only way it will resolve is when you get it outside the employer's control.

 

Challenge everything they say and do.

[prishan]

get the grievance in specifically alleging discrimination.

 

OH work for the employer. if the OH report states she is not fit to work they will dismiss on capability. if the discrimination grievance is in and they dismiss then, then potentially she will have a victimisation claim.

 

The only way it will resolve is when you get it outside the employer's control.

 

Challenge everything they say and do.

 

Brilliant! you got it right! we would have been in real trouble in OH if gone without a grievance. She will post one now.

 

Thanks again. I will you keep you posted.

 

Prishan

[prishan]

Hi Papas,

 

Got to ask one more question.

 

My friend is wondering whether she should ask the assessor body ( independent of the employer) to withdraw their report which is now faulty in the light of her disability revealed ( the assessors should have been able to spot that and there is even a clause in their handbook that if they come across any health condition seems to be affecting the performance the assessment will be put on hold, and where necessary the employee will be sent for an specialist opinion).

 

Now the employer using that report to either demote, discipline or dismiss her , although report is not as such binding on either party.

 

So what do you think is it a good idea to pursue also with the assessor body to withdraw their report. Please advice.

 

Hi all your advice and comments are very much appreciated.

[papasmurf1cx]

Who paid for the assessment? if it was the employer, you could ask for a second opinion in light of her report.

 

Professionals rarely will change an opinion merely on your asking them to do so. They may revise their opinion in light of new and further evidence that was not available to them at the time.

[prishan]

Who paid for the assessment? if it was the employer, you could ask for a second opinion in light of her report.

 

Professionals rarely will change an opinion merely on your asking them to do so. They may revise their opinion in light of new and further evidence that was not available to them at the time.

 

Genius! Its the employer paid for the assessment. In effect, she went to the specialist for a second opinion.

 

Thanks.

[prishan]

another over lapping post!

 

Could you tell us what exactly an injunction is and how to go about having one if in worst case scenario the employer intends to dismiss her or invoke a capability procedure?

[papasmurf1cx]

An injunction is an order from a court stating a course of action should or should not happen. It is not relevant in the circumstances you have described. Look to Employment Tribunals for resolving problems. You can't stop an employer taking a course of action that they are intent on doing. All you can do is complain to the courts and that means the ET.

[prishan]

An injunction is an order from a court stating a course of action should or should not happen. It is not relevant in the circumstances you have described. Look to Employment Tribunals for resolving problems. You can't stop an employer taking a course of action that they are intent on doing. All you can do is complain to the courts and that means the ET.

 

Thanks!

 

does that mean she can go to ET only after the employer takes a course of action like dismissal?

 

If she applies to ET now what will be the best claim? Constructive dismissal or simply disability discrimination?

[papasmurf1cx]

Don't even think about constructive dismissal. You should always hang on and make the employer do the nasty actions like dismissal.

 

if a discrimination case is clear you can ask a Tribunal for a declaration of discrimination... but that doesn't happen very often. Normally the parties get to a stage where they are dismissed say eg capability. But if the employer made them incapable and ill then the Et would say so and award compensation acordingly.

 

You have to be very very honest with yourself as to whether you are capable of taking an issue as far as a Tribunal. It is not easy to do so and very stressful even with a solicitor it is stressful. So be careful for what you want.

 

Is the employer open to concilliation?

[prishan]

Don't even think about constructive dismissal. You should always hang on and make the employer do the nasty actions like dismissal.

 

if a discrimination case is clear you can ask a Tribunal for a declaration of discrimination... but that doesn't happen very often. Normally the parties get to a stage where they are dismissed say eg capability. But if the employer made them incapable and ill then the Et would say so and award compensation acordingly.

 

You have to be very very honest with yourself as to whether you are capable of taking an issue as far as a Tribunal. It is not easy to do so and very stressful even with a solicitor it is stressful. So be careful for what you want.

 

Is the employer open to concilliation?

 

Right! my mate doesn't have any choice now but to pursue her claim to ET eventually. In fact , her plight is going on for past few years and recently both party were up for a mediation, the proposal itself came from the employer but later they made an U turn, allegedly the ACAS told them that mediation does conflict with capability issue, so not appropriate under the circumstances. ACAS was not told about her disability. Now, they are insisting her to either accept a demotion or face competence procedure ignoring her disability issue. My mate doesn't think they can invoke competence because they failed to implement training for her where performance report clearly indicates she is trainable. Moreover, she was put off work for long period of time unlawfully without following a suspension procedure and also brought back to a different place and kind of work contrary to her contract. The employer is in breach! She put this on her grievance!

Ironically, all this breach is undertaken by her employer in without prejudice correspondence.

 

Can they claim immunity for doing that in without prejudice?

 

In other words the employer is making her incapable!

 

She knows how stressful an ET can be and how stressful it is now yet she has apparently no alternative unless her employer comes to senses.

[papasmurf1cx]

They can do what they want.... whether that is legal is another thing. Sounds like they just want her to 'go away' and won't dismiss because they would be acting in a discriminatory manner.

 

How many years has this been going on?

[prishan]

They can do what they want.... whether that is legal is another thing. Sounds like they just want her to 'go away' and won't dismiss because they would be acting in a discriminatory manner.

 

How many years has this been going on?

 

It's been more than three years ..

[honeybee13]

Hello guys. I apologise if I've missed anything, but has anyone suggested ringing the EHRC to see what they can offer?

 

My best, HB

[prishan]

Hello guys. I apologise if I've missed anything, but has anyone suggested ringing the EHRC to see what they can offer?

 

My best, HB

 

Thnx HB. Not at all. You haven't missed much.

 

What exactly EHRC's remit? do they intervene or just gives guidance?

 

Can my mate calls them anonymous?

[honeybee13]

Hello there. Here's a link to the EHRC website so you can have a read. The last time I rang them about a blind friend, they didn't ask me anything about myself as I recall.

 

Please have a look, I hope it helps you.

 

My best, HB

[prishan]

Great! HB

 

I will tell my mate to check with them.

 

Kind regards.

[prishan]

They can do what they want.... whether that is legal is another thing. Sounds like they just want her to 'go away' and won't dismiss because they would be acting in a discriminatory manner.

 

How many years has this been going on?

 

You absolutely right! they want her to go away quietly in empty hands and that's not all she had to give away all her claims and won't get another job! That's what they did sound.

 

Prishan