Disability Discrimination

[lbruk]

Hi all,

 

I received my reply from the ICO saying that my previous employer was "unlikely to have complied with the DPA due to them not supplying the information requested within the 40 day statutory period." also that the amount of time they took to request the fee, was excessive.

 

When I requested my details, they had no clue what I was requesting. They sent me my "personnel file" when I queried this (I had worked there for 16 years so it was quite substantial!) and told them it was everything that they had on me, I received another package with some other bits. But I am still convinced that there are other documents that I do not have.

 

With the ICO coming down on my side I am contemplating my next steps. Is it:

 

I send my ex employer a letter again requesting the information and requesting compensation?

Or

Go straight to the small claims court seeking damages and distress caused?

 

There is conflicting information to do one or the other and just looking for some advice

 

Thanks

[silverfox1961]

Hi

Being convinced and knowing absolutely they are holding more data is where this might fall down.

 

Unless you know they have held stuff back, what could you go to court with?

[lbruk]

I have not received loss prevention records, that I know exist. So that is at least one area they have failed on.

[BankFodder]

If you challenge your employer in court it is all too easy for them simply to tell the court that there is no more - and it is likely that the court will accept their word.

 

To give yourself more credibility you will have to have some idea as to what is missing.

It can be very useful, for instance, to be in possess of documents which don't appear in their disclosure bundle. That helps you prove that they are witholding material.

 

If you are able to put a list of documents which appear to be missing, you should then write to your employer, complain that the disclosure is still not complete. Inform them that you are aware at least of the following documents are missing - or documents dealing XX episode etc are missing and that if they do not disclose those and also others which you believe they have in their possession that you will go to court.

I think that you will have to have very good grounds for saying that certain documents are missing.

[lbruk]

what i am getting at really, is that the ICO have investigated them, and have found them in breach of the DPA (well said they are unlikely to have complied) whether or not there are additional documents, which i know there are, am i at a point where i can put in a claim to the courts, or write to them to express my disappointment that they were in breach and request again the missing documents and compensation?

[papasmurf1cx]

What losses did you incur because of the Data Breach?

 

The salient pojnt is that losing or abusing your personal data has to lead to some loss, the mere fact they are incompetent or worse, vindictive, by misusing your personal data would not attract little or any compensation.

 

What are 'loss prevention records' ?

[lbruk]

LP records are records into investigations they have held against me in a non-performance way, for example, the one i know that exsists is to do with an interview that took place because i had entered into an IVA, they interviewed me to make sure i wasnt going to steal from them! basically thats what it was. They wanted information why i entered into it - blah blah blah - although i had told my line manager at the time i had entered into the IVA- he obviously hadnt passed this along and then left the company!

There are other records - emails etc regarding events and things that have happened that i am sure exist, but no proof they do, where as i saw this file into my IVA.

 

I'm not overly worried about the compensation amount, more the inconvienence I am putting them through, they are a very arrogant company, and very much into lining their own pockets and doing nothing to help the staff/managers that work instore. Its all about head office, they threaten the earth when it comes to breaking the law instores, i'm interested in what they do when they break them at a head office level.

[papasmurf1cx]

If you are not interested in compensation, why write

 

"I send my ex employer a letter again requesting the information and requesting compensation?

Or

Go straight to the small claims court seeking damages and distress caused?"

 

I don't understand.

 

If you are thinking about taking an action out against a company that has huge resources when you have entered an IVA I think you are storing big problems for yourself especially if you cannot demonstrate you have had losses from the breach. You are likely to become worse off especially if they use their resources and knowledge to try and get you to pay any costs that they incur.

 

Perhaps if the company is winding you up so much that you should be thinking about finding another employer that is fairer to you and their staff. ??

[lbruk]

i dont work for them any more, and my IVA has finished, They forced me out after coming down with depression and anxiety, which is going to tribunal in a couple of months for disability discrimination and constructive dismissal.

 

my aim for this is to be another inconvienice to them, another thing they have to deal with, obviously i want some form of compensation as this contributed to a relapse into depression in september last year, but the compensation is not top of my list.

[papasmurf1cx]

Perhaps it was a 'detriment' and therefore victimisation if done because you raised a grievance or took them to the Tribunal? are you represented by a solicitor or are you doing this yourself?

[lbruk]

i am representing myself and using the CAB for my employment tribunal, but that is something else - this problem is a different kind. basically i went off sick and admitted to the Priory Hospital. my employer at the time wouldnt pay my sick pay so there for i was on £87 a week SSP. After being discharged from the Priory 3mths later, as a day patient then, i resigned. I had appealed my sick pay decision, then requested my SAR, then resigned, then raised a grievance, then appealed my grievance, even though they stated that an appeal was not possible! then submitted my ET1. within that i also had to argue with them about the DPA wasnt just my "personnel file" as they put it (in writing) and the documents i was refering too were not part of that and therefore had been omitted.

 

i could write an EMORMOUS post about everything that has happened! but i can do that once i have got though everything.

 

basically i am concentrating on the SAR atm, becuase the rest of the ET stuff, i cant do anymore until i get the date of the tribunal.

[lbruk]

Hi,

 

There is a long story behind all of this. Basically my employer disciplined me for poor job performance, I requested to be demoted because I was finding it hard to cope with my role. The same day my demotion was refused I was diagnosed with severe depression, and put on anti depressants and referred to a consultant psychiatrist.

 

Now there were warning signs of my decline, my line manager said in some notes that normally i am "unemotional and hard to read" put that with the fact that during my interviews I was crying, expressing thoughts of suicide and admitting self harming.

 

My question is, technically i was requesting a reasonable adjustment to my role in demoting myself, during that interview i expressed my problems and it was still declined. Is this a breech of the Equalities act? Even though they had no direct knowledge of my disability (it is now defined as a disability as its been long standing and had adverse effects on me) would these revelations that i was suicidal and self harming be enough for them to have reasonable knowledge of a problem? The same day in the afternoon they were informed of my illness. but did nothing.

 

I am going to tribunal, i am using the disability discrimination laws, I am seeing if people here would think that something is very wrong with me at that point?

 

thanks

[RachelMD]

Yes, is the simple answer.

It seems to me that your behaviour would reasonably give your employer/manager 'constructive knowledge' that there may be something significantly wrong, and they should have made such enquiries as to ascertain if that is the case.

Behaviour such as crying, talking of suicide and self harm would be clear indications that further enquiry should be made, certainly to me. I do hope you're now recieving the assistance you need from your GP/Consultant.

 

Look at the case DWP v Hall EAT 2005. That is very much relevant to your situation.

[lbruk]

thanks for your reply and the case name, its really hard to try and find relevent cases to help me! Indeed i have received, and still am receiving, extensive treatment for a number of issues.

 

I no longer work for that company, and am in a much happier job now.

[honeybee13]

Hello there.

 

Can I just ask if you've filed the ET papers please? I know there are time limits.

 

My best, HB

[lbruk]

yes, everything was filed in september, i have my case management hearing in early april and i'm just getting my arguments sorted out

[lbruk]

Last week myself and my respondents solicitor agreed our schedule of issues as below:

 

I didn't realise how many issues i had with my previous employer! If any one knows of any relevant case law that would be great, i am aware of a few such as DWP Vs Hall, Dickens Vs O2 and Daw Vs Intel but if there is any others that fall into the categories below that would be fantastic to know.

 

I have obviously anominised the list removing all names!

 

PROPOSED LIST OF ISSUES

 

 

Disability Discrimination

 

1) Is the Claimant a disabled person pursuant to Section 6(1) of the Equality Act 2010?

 

2)

a. Did the Respondent have knowledge of any such disability, constructive or otherwise?

b. If so, upon what date did/should the Respondent become aware of the disability?

 

3) Has the Claimant been subjected to less favourable treatment (direct discrimination) because of a disability contrary to Section 13(1) of the Equality Act 2010 in respect of the following allegations:

 

a. Instigating disciplinary/performance proceedings? and/or

b. Failure to investigate the claimants crying and upset demeanour in store and in disciplinary interviews in November 2010 and March 2011?

c. Ignoring signs of the illness in the claimant?

d. The Respondent’s refusal to exercise its discretion in favour of the Claimant to pay sick pay?

 

 

4) Has the Claimant been subjected to discrimination through the Respondent’s failure to make reasonable adjustments contrary to Section 20 of the Equality Act 2010 in respect of the following allegations:

 

a. Failure to consider any alternative roles i.e. demotion to a more junior role than that of Store Manager?

b. Failure to consider or suggest reasonable adjustments once knowledge, constructive or otherwise, of the claimant’s ill health was known – specifically:

i. Failure to support the claimant while they attended intensive therapy at the Priory Hospital in the form of paying sick pay for during the Claimant’s absence so he would not have to worry about finance?

ii. Failure to consider relieving workload and/or targets of the claimant whilst the claimant was undergoing assessment and treatment for depression from February 2011?

iii. Failing to support the claimant in terms of additional staff/managers to assist in the running of the store that were readily available immediately after the claimant was signed off unfit for work by his GP?

c. Failure to adjust the disciplinary process in March 2011 once actual knowledge of the claimant’s ill health was known? Specifically:

i. In delaying the proceedings to allow for medical assessment and treatment to be instigated.

ii. In separating the meetings to deal with the request for adjustment to the Claimant’s role and the disciplinary to be held at different times.

iii. In delaying the proceedings so that the Claimant would have more time to prepare a case of defence.

iv. To supply the Claimant with the evidence against him before the disciplinary meeting took place.

v. To look at changing the location so the Claimant would not have to drive such a long distance while being disabled.

d. Failure to support the claimant with increased supervision and/or support as requested in November 2010?

 

 

5) Has the Claimant been subjected to harassment contrary to the Equality Act 2010 in respect of:

a. The “inappropriate language” used to admonish the Claimant by Area Manager on 17th April 2010.

b. The threatening and intimidating language used by Sales Director in January 2011. Specifically the visit towards the end of January, Sales Director was very particular in picking up detail such as a price label being wonky, and one piece of rubbish in a storeroom. Sales Director said “I don’t care whether the management team are happy, I want them where they will make me money.” And “it not only that I want it that way, I will have it that way.”

c. The body language used by Operations Director at the National Managers Meeting in March 2011. Specifically: Operationas Director was greeting everyone in a friendly and open manner, when he got to me I felt a wave of hostility from him, the smile drained from his face, he did not speak to me just shook my hand and moved onto the next person who he greeted with a friendly hello and handshake.

d. Area Managers’s attitude towards the Claimant on the phone and during various visits, saying such things as “Covering Manager can do it (the covering manager for my holiday) why cant you do it" and “you have been here 15 years, you should be able to run a shop with your eyes closed.”

e. Comments made in disciplinary and investigatory interviews such as “don’t cry XXXX used up all my tissues” from Personnel Director. And other comments made within these interviews.

 

Respondent’s position:

The Respondent submits that no allegations of harassment were made within the Claim Form and therefore no issues arise under this heading.

 

Claimant’s position:

Claimant submits that although no direct allegation of harassment was made in the Claim Form it is clear from the number of visits and continued criticism alongside these that there was harassment present in this case.

 

 

 

Sex Discrimination

 

6) Was the claimant subject to less favourable treatment because of his sex in terms of the reaction of the Respondent to his illness? Specifically that once the illness was known, he was treated less favourably than females with the same illness? The Claimant was disciplined and left to continue to work, whilst females were given options for flexible working or other such adjustments.

 

Unfair Dismissal

 

7) Has the Claimant been dismissed? The Claimant seeks to rely on a series of acts culminating on or before 2 July 2011 that together amount to a repudiatory breach of the contract of employment by the Respondent. Specifically, the Claimant seeks to rely on the following incidents as identified within the Claim Form:

 

i. In failing to acknowledge or investigate the Claimant’s ill health and obvious distress as a cause for his deteriorating performance and continuing to discipline him for performance issues relating to his ill health without making any adjustments to support him in any tangible way;

ii. In suggesting a demotion in response to the Claimant’s statement that he was feeling depressed and suffering anxiety attacks;

iii. In failing to follow a fair process in relation to the disciplinary meetings held (Area Manager chairing the investigation and disciplinary hearings at each stage and the failure to provide materials to be discussed in advance of those hearings);

iv. In treating the Claimant in such a way on the 17 April 2011, in front of staff, that undermined his position to the extent that returning to the workforce in his role would have been impossible;

v. In failing to allow any right of appeal against the grievance raised.

 

 

8) If yes, was the Claimant dismissed for a fair reason as prescribed within Section 98 of the Employment Rights Act 1996?

 

9) If so, what was the fair reason?

 

10) Has the Respondent acted reasonably in all the circumstances?

 

 

Other Claims

 

11) Is the Claimant entitled to unpaid salary in respect of sick pay for the period 18th April 2011 to 2nd July 2011?

 

12) Has there been a breach of the ACAS Code of Practice in respect of Grievance and Discipline?

 

13) Does the Respondent have an adequate policy in identifying and investigating work place stress as required by Health and Safety Law and was this seen through by the Respondent when knowledge, constructive or otherwise, of the Claimant’s distress became apparent?

 

Respondent’s position:

The Respondent submits that this issue/allegation is outside the jurisdiction of the Employment Tribunal and cannot be considered]

 

Claimant’s position:

The Claimant insists that this is a fundamental problem within the company and that it can be argued that because there is no system to identify and assist stressed employees that this is a major breakdown in the management of the business, and requests that the Employment Judge decides their jurisdiction in this matter

 

14) Did the Respondent fail in its duty of care towards the Claimant? Did this failure significantly contribute to the Claimant’s deterioration of his mental health resulting in hospital admission?

 

Respondent’s position:

The Respondent submits that this issue/allegation is outside the jurisdiction of the Employment Tribunal and cannot be considered

 

Claimant’s position:

Claimant insists that this is a fundamental problem within the company and that it can be argued that because there is no system to identify and assist stressed employees that this is a major breakdown in the management of the business, and requests that the Employment Judge decides their jurisdiction in this matter

 

15) Did the Respondent fail in its duty of care towards the Claimant resulting in the need for the Claimant to receive trauma counselling from a specialised therapist because of the way the Respondent had failed to assist the Claimant?

 

Respondent’s position:

The Respondent submits that this issue/allegation is outside the jurisdiction of the Employment Tribunal and cannot be considered

 

Claimant’s position:

Claimant insists that this is a fundamental problem within the company and that it can be argued that because there is no system to identify and assist stressed employees that this is a major breakdown in the management of the business, and requests that the Employment Judge decides their jurisdiction in this matter

 

16) Was the Claimant negligent to its customers and employees by leaving the Claimant as the responsible Health and Safety person?

 

Respondent’s position:

The Respondent submits that this issue/allegation is outside the jurisdiction of the Employment Tribunal and cannot be considered

 

Claimant’s position:

Claimant insists that this is a fundamental problem within the company and that it can be argued that because there is no system to identify and assist stressed employees that this is a major breakdown in the management of the business, and requests that the Employment Judge decides the jurisdiction in this matter

[lindyhop]

ibruk, do you have a solicitor helping you with this or are you doing this on your own?

 

just wondered as i will be undertaking my own ET action soon.

 

keep strong

[lbruk]

i am doing it on my own at the moment, but have a CAB adviser helping me

[lbruk]

A quick breakdown of the incident. This happened from June 2010 onwards.

 

I was a Store Manager for a large retailer, an employee was caught stealing, I suspended her and she went home. Later that day she attempted to kill herself, ending up in hospital. Her parents obviously blamed me for the suicide attempt until she was able to tell them what had happened. I was unable to tell them due to confidentiality reasons.

 

Over the next few months my performance declined due to me feeling very guilty about the whole affair, no help was offered by the employer. In November I was disciplined for poor job performance. During this meeting I started crying and was met with the comment "don't cry, someone else has used up all my tissues." In notes, my line manager has stated that my normal state is "unemotional and hard to read". I also requested help as I was struggling and that the things that used to come naturally, are not any more and that my head doesn't seem to be working properly. This request for help was denied and said is was "impractical".

 

In February I was again disciplined, this time i had a complete break down in front of my line manager and told her that i was suicidal and not coping and asked to be demoted to help relieve the pressure and stress. The conclusion to this investigation was to deny my request to demote and issue a final written warning.

 

After that meeting i attended my GP and was diagnosed with depression and put on Citalopram. I informed my line manager of this. No further reviews were done and i was obviously still struggling.

 

In mid April, my line manager came in and spotted 2 employees misbehaving. She came up to me and in front of staff and customers, said "what the f*** is going on, i have just seen x and y playing in a storeroom, you need to get a f***ing grip and sort it out." In full knowledge of my condition, medication and referral to a consultant.

 

My GP signed me off the next day. I attended a consultant psychiatrist and was admitted to the Priory Hospital. I was treated there for 10 weeks.

 

I am still on Citalopram (60mg now) and attending one-to-one therapy for depression, PTSD and anxiety.

 

My questions is - should my employer have spotted my issues in November and tried to help me then? After it was known in February that i was suicidal and not coping, should the employer have investigated this further and offered adjustments and help at that point? It was approx 6 weeks from my actual diagnosis by my GP to the incident in store with my line manager. Does the employer have a duty to step in and say that they need to make adjustments, or do I actually have to request them? i.e. extra staff, lowering of targets etc.

[billybobyeeharrboy]

Hi Matey,

 

sorry for such a late response...I have been through kinda similar circs so I will try to answer this.

 

"In November I was disciplined for poor job performance"- had you previously been pulled up for poor performance?

 

"After that meeting i attended my GP and was diagnosed with depression and put on Citalopram. I informed my line manager of this. No further reviews were done and i was obviously still struggling."- after you had Medical evidence from your GP this is where your employer should have done proper assessment of you and decided how to proceed rather than just leave you to carry on your role, where potentially your condition could be aggravated leading to a deterioration of your mental state. This COULD be a breach of Health and Safety.

 

should the employer have investigated this further and offered adjustments and help at that point? I agree with your hypothesis here, yet it really depends on whether it was reasonable for your employers to do something.....in my humble opinion your condition is very serious and your company should have seriously considered helping you out or offering some form of counseling (especially as this would look good on them if you were to progress to Employment Tribunal) the employer has a duty to look after your health and safety and by not doing so could constitute a breach.

 

The Manager swearing at you was this an isolated incident as a one off might not be substantial enough to bring a claim. If it happened on more than one incident over a period of time it could amount to harassment.

 

How big is your employer. A big plc or a smaller company?

 

I am very sorry for what you have had to go and really how serious depression can be. I do hope this is of some help.

 

best wishes

[lbruk]

i worked for them for 16 years in the end, i left last July, i had been pulled up for poor performance once in 2008, but that was it. They are a huge multinational company, with no Occupational Health.

 

I am going to the tribunal for constructive dismissal, disability discrimination and sex discrimination, sex discrimination because when a female told them she was suffering from the same illness, she was referred to flexible working etc.

 

There is a history of harassment that after my condition was known i was told "you have been a store manager for 6 years, you should be able to do this with your eyes closed".

 

I'm quite up to date with knowledge of discrimination but cant get an answer on whether they should have stepped in after it was known, or whether it was my responsibility to bring up adjustments to help me, (even though i was a complete emotional disaster at that time! I am pretty much on an even keel now and looking forward to dissecting my line manager at the tribunal.

[becky2585]

Under paragraph 20, Schedule 8 of the Equality Act 2010, if your employer did not know or could not have reasonably been expected to know you were disabled, then they aren't under an obligation to suggest reasonable adjustments. I don't think even you were aware in November, so I don't see how your employer could have been expected to have constructive knowledge. Your actions in November don't necessarily point to a disability, merely a normal reaction to an employee being taken through a performance management process. Unless there was any out of the ordinary behaviour which set you aside as being disabled?

 

The other point is that without a clinical diagnosis there's no way to tell how long the effect is going to last - therefore you may not have the argument that your employer should treat you as disabled. Without constructive knowledge, clearly they can't be under an obligation to suggest reasonable adjustments. If they were aware, however, that would have been different.

[lbruk]

I agree that November might be a little ambitious in my assessment of them sorting something out. So the first they would have reasonably known anything would have been February 25th 2010, case law says that a breakdown in front of a line manager is enough to warrant an investigation. This was not done. So were they in breach here? They allowed me to continue working without a risk assessment (Local EHO says that this is a problem and is investigating) and in knowledge of my illness.

Would it be reasonable to assume that once my illness is known, they should look back retrospectively and see that there was a problem in November? This would then would be 4/5 months later, the treatment for depression is approx 6 months minimum, if it were me i would have aired on the side of caution here. Obviously saying you are suicidal and self harming, points to something serious? or is that an unreasonable view?

[goboy]

My aunt works for a huge multinational company, with no Occupational Health, she has sent all her medical records to them and she still does not know whether they are conceding to her having a disability. She has had assessment with A2W when there was an in-house OA they were told that she had underlying problems, but manager did not take any notice of this. What she wondering now who is going through her medical records to make this assessment for her. She feels that employer is too mean to employ an expert to go through her medical records and her manager will be doing this without any medical knowledge.

 

Hope you can take them to the cleaners for the way they have treated you.