Disability Discrimination

[lbruk]

Yes I agree, in the report my psychiatrist sent to the tribunal and respondent he put it that I had reported symptoms since September 2010 and stated that it could have been sooner.

[goboy]

Yes I agree, in the report my psychiatrist sent to the tribunal and respondent he put it that I had reported symptoms since September 2010 and stated that it could have been sooner.

Your impact statement with your psychiatrist report should be sufficient. It is very difficult to say when a disability starts you cannot wake up one morning say I have a disability!! But the tribunal would be able to determine this for you. Are you getting any sort disability benefit such as DLA have you applied for it, I am sure you would be eligible for it and why not make enquiries about it. Get in contact with MIND

[lbruk]

I am a member if mind, have been for a while. I left that job in July 2011, and have a very good full time job now, I don't believe benefits are necessary, but thanks.

 

I guess you are right, let's just see what the tribunal say then

[goboy]

You are sort of correct, yes.

 

The Tribunal has the ultimate power once proceedings have been issued, if the issue of disability is contested by the respondent, to rule whether the claimant is disabled or not. That's to determine legal disability, and thus whether the ET has jurisdiction to hear a claim. The legal burden of proof is squarely on the claimant to prove they are disabled, which is why disability is often disputed as a tactical point.

 

Pre litigation, it's somewhat different. You wouldn't, for example, ask a judge to rule as to whether an employee is disabled before deciding whether reasonable adjustments ought to be implemented. If an employee makes you aware that they are disabled, that's when the obligation potentially arises and when the employer is deemed to have constructive knowledge of the employees disability. Of course, an employer could still argue that an employee wasn't disabled, at which point the employee would undoubtedly claim constructive dismissal, disability discrimination and/or a failure to make reasonable adjustments, at which point it would be referred back to the ET to determine whether the claimant is disabled...

 

In practical terms, employers are better off treating an employee as disabled to err on the side of caution and help avoid legal liability.

 

Therefore if employer says there is no disability then my aunt could resign and claim constructive dismissal and it is only then that it can be referred back to the tribunal to determine whether there is a disability.

 

Is this correct Becky.

[papasmurf1cx]

Therefore if employer says there is no disability then my aunt could resign and claim constructive dismissal and it is only then that it can be referred back to the tribunal to determine whether there is a disability.

 

Is this correct Becky.

 

She should never resign. That is a bad tactical move (although I appreciate she probably is looking to get away from these people). She should put in a grievance and wait to see if the employer enacts a "detriment" against her for putting in the grievance. If they do a detriment that could be viewed as victimisation. Constructive dismissal would not be easy to prove.

[lbruk]

resigning makes things difficult for you (i resigned and am claiming constructive dismissal, its a bit of a long shot in my case and not forming a massive amount of effort by me to prove) while you work there you still have all the rights as an employee.

[goboy]

She should never resign. That is a bad tactical move (although I appreciate she probably is looking to get away from these people). She should put in a grievance and wait to see if the employer enacts a "detriment" against her for putting in the grievance. If they do a detriment that could be viewed as victimisation. Constructive dismissal would not be easy to prove.

Her problem is that she cannot go back to work without adjustments and if the employer says she had not got a disability what happens then. If they put adjustments which they think is adequate for her they will work there for so difficult for her that she will end up leaving anyway. I think she would prefer to do this rather than let the employer do the sacking.

 

resigning makes things difficult for you (i resigned and am claiming constructive dismissal, its a bit of a long shot in my case and not forming a massive amount of effort by me to prove) while you work there you still have all the rights as an employee.

She may have to leave if her firm do not make reasonable adjustments for her, the company is well known for saying yes they will make adjustments but in practice this does not happen.

 

This has been a very distressful time for her and is taking its toll on her health.

[lbruk]

well file the grievance now! if you do not get the result you want then you are in a far stronger position to resign.

[goboy]

well file the grievance now! if you do not get the result you want then you are in a far stronger position to resign.

 

Grievane has been filed before but was no used things got worse for her, she will know soon enough regarding what employer says about her disability. Hopefuuly that will be soon. She is off work at present and will not retune until they put adjustments in placce for her and it has ot be in writing.

[lbruk]

In addition to this, I need to work out what the correct comparator for the following direct discrimination.

This is taken directly for my Schedule of Issues:

 

 

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?

 

So i am looking for the correct comparators to put into my statement. Any advice would be appreciated

[lbruk]

ok, so letter from the respondents solicitor today, they have conceded that i am disabled under the Equality Act (hurrah!) but they have given the specific date of April 7 2011 (boo) but a concession on their side is good. just need to haggle on the old date now!

[goboy]

ok, so letter from the respondents solicitor today, they have conceded that i am disabled under the Equality Act (hurrah!) but they have given the specific date of April 7 2011 (boo) but a concession on their side is good. just need to haggle on the old date now!

 

1bruk, it is good that they have conceded, just keep going and haggle their date, will it make a big difference to your claim if they do not change the date for you.

 

My aunt should know soon about her employer decision, but she not holding up much hope knowing how they have been with her.

[assisted blonde]

I think that although your weekly hours may be doubled over a period of time without set hours there isnt any employment law to cover it and you had signed to say the WTD didnt apply. Some weeks I can work 50-60 hours others a lot less but i dont get paid extra for the longer hours, neither do I get penalised for the shorter ones, its down to the demands of the job at any particular time.

As I said before very common some companies might let you have some extra time off at quiter periods to compensate but they dont have to. I dont think there is anything that you can do about this.

[lbruk]

Yeah i did the same, i'm just looking into this, as the person that mentioned it is studying HR and just got onto this topic. I'll wait still she has read a bit more!

[lbruk]

Hey,

 

Does anyone know what an employer is in breach of, if anything, if they fail to investigate an obvious illness? This illness then becomes a disability under the Equality act, and they still do not investigate.

[30stm]

Hi - I'm no expert but I think it would come under Failure in "Duty of Care"

 

Try ...

Health and Safety at Work etc Act 1974.

Management of Health and Safety at Work Regulations 1999

[lbruk]

thanks

[papasmurf1cx]

There is not enough information to make a judgement. Medical information is personal and employers don't have any right to enquire into ones health. There have been discussions on here that basically stated that being ill is no defence to not turning up for work ie so what if you have the flu / heart condition / need to take medication you are under contract to work... work !

 

However if the illness has progressed to becoming a disability and you tell the employer that you need some sort of 'reasonable adjustment' and it can be done easily then the law provides a level of support and protection for the disabled person.

 

I fear that the Health and Safety legislation is more concerned with providing a safe environment to work in rather than placing any responsiblity on the employer to ensure an illness is investigated...... unless the employer's work environment has caused the illness... that's a different ball game.

[lbruk]

Does anyone know what the interest rate for discrimination is for tribunal schedule of loss?

 

thanks

[becky2585]

There isn't one.

 

Interest only kicks in when there is a Judgment deadline by which to pay and the deadlines missed.

[lbruk]

ok, thanks becky

[lbruk]

Hi all,

 

I was wondering if anyone knew if there is a statutory time limit for an appeals process to be carried out.

 

This doesn't relate to a disciplinary procedure, but to the non-payment of sick pay - the decision was to not pay sick pay, however this was appealed, is there a standard time limit for processing and replying to an appeal like this?

 

thanks

[Gazza01]

Hiya

 

Ask HR for the documentation policies/procedures covering pay.

 

If there is nothing in what you get - and do it by email & BCC [blind copy] yourself at home so you have a record - I think they will have a little problem as there should be.

 

Good Luck

[lbruk]

My case just gets funnier and funnier really. In June 2011 i requested information under a SAR to my employer. I received some in August, i wrote to them again saying bits were missing, i received more. I reported them to the ICO, they were found in breach of the DPA. I wrote again to the respondent and they sent more documents and a nice letter saying that they had done a thorough search and that really was EVERYTHING.

 

Guess what!? In the bundle for my tribunal there are about 20 documents and handwritten notes that were withheld from me! Brilliant, I think. Problem is i have no idea what to do with these documents now! I phoned the ICO and they were like "we cant do anything unless there is a complaint" which is fair enough, so now i need a complaint! Its not anything completely devastating to my case, in fact some are quite handy for me.

 

I have written a letter to their solicitor asking for some more documents to be added, and also a nice line about this complete balls up by them. But not sure what to do with anything else, I havent really incurred any losses bar my time, ink and paper to write to them and the ICO so small claims is kinda out the window. Any suggestions?

[billybobyeeharrboy]

Hi Ibruk,

 

You are in the middle of an ET claim. Correct?

 

I have just submitted an appeal to the EAT today, do you know if i have the right to write to the company under the freedom of information act and ask for full disclosure of everything pertaining to me. Could this interfere with my EAT claim? I also would like to write to the company as confidential information of mine was openly passed around the company without my consent!

 

Thanks

 

BB