Disability discrimination - PCP?

[littlemissy]

A couple of years ago I was assaulted out side of work. As a consequence, I suffered PTSD and was admitted into a private mental health hospital. After a few months off work on sick leave, I returned to work. My psychiatrist wrote to my then manager saying I was suffering from severe depression and should return to work gradually. I wasn't referred to OH on return to work, I wasn't supported and actually returned full time and moved into a more stressful job due to an office reshuffle. Since I had been assaulted I was very vulnerable, I didn't know at the time we had OH and I didn't want to make a fuss as I had a criminal court case to deal with. I was taking lorezapam, sleeping pills and anti-d's daily. FYI, I work for a large organisation and discovered this year they have OH and always have had!

 

I have email evidence of my struggle over the years with work due to the assault (i.e I didn't respond well at being shouted at in public). The final straw came earlier this year when I had a public breakdown after being publicly humiliated by my manager who told me I was 'too weak to do my job because of my personal history'!

 

A grievance was raised over 6 months ago (still not answered by respondent) and a tribunal was raised in May (ET3 response still not received as the court granted respondent an extension).

 

My question is, can I prove PCP by saying the company could have sent me to OH for review on return to work?

 

OH would then have made recommendations that:

- I should receive more support from my manager due to my vulnerability.

-My manager could have been asked to attend training to support them dealing with employees with mental health issues. -

 

Comparator: Would it be someone who has never been assaulted or suffered PTSD?

 

My disadvantage: had I been given OH review, recommendations would have been made to provide more frequent support and I would have been able to complete my role as without having another breakdown. FYI, I received less support than my mentally healthy colleagues as they had more frequent 1:1s.

 

I am guessing I can prove I have a disability (the assault lives with and impacts me daily and it always will)? The CPS bought a case against the person who assaulted me and evidence of my PTSD was used to secure a conviction.

Many thanks

Edited September 26, 2012 by littlemissy

[Emmzzi]

Hi there.

 

I don't think you can predict what OH would have done.

 

So I think it is more that you made employer aware you were having mental health issues folowing the assault and provided a medical reporting reccomending a phased return

 

Your employer transfered you to a full time more stressful position (define how - tighter deadlines? greater workload? more difficult customers?)

 

When you struggled with that position, feedback was aggressive and in public

 

This impacted you more than a person without PSTD because (more sensitive/ reacts badly to yelling/ whatever your specifics are)

 

A reasonable adjustment would have been a) phased return per medical reports and b) look up a course from MIND or similar that your manager could have been sent on and c) hearing grievance in a reasonable timeframe to determine if there was a problem d) leaving you in your existing role (but only use this if it still exists!).

 

Had you been given this support you expect that you wuld be able to perform well in your old role or indeed your new role.

 

The conviction is not especially relevant to the case as only medical reports will show how it impacted you.

 

There are a couple of more experienced guys who will be along soon I am sure

[lbruk]

Hi,

 

Well - ok - firstly i would recommend you sitting down and writing out the job you did before, and what you were expected to do after. How the PTSD affected you and what parts of your job that applied too. When you told your manager what was wrong and when they did a capability meeting (if they did at all). When you brought up incidents that affected you deeply and how you felt about it after. When they said these things and how they made you feel.

 

I would push for the outcome of you grievance now.

 

For disability discrimination - you do not need a comparator, you just need to prove you are suffering and that it affects you in normal day-to-day activities, also that you have done or a reasonably likely to suffer with this for over 1 year.

 

As for proving PCP, how and when did they know - who knew and what did they do - they dont have to send you to OH if they have external reports. The way i would deal with it would be

 

did they hold a capability meeting?

did they request your medical reports?

did they send you to OH?

 

those are the things i would be asking.

[stu007]

Hi

 

Something else to bear in mind is did the company actually follow their own Policies and Procedures.

 

I would request copies of the following in writing (always get proof of posting):

(You also want acutal copies of these not what is in an employee or staff handbook as these may be a shortened version you want the full unedited versions)

 

Health & Safety Policy and Procedure.

Stress at Work Policy and Procedure.

Health & Wellbeing Policy and Procedure.

Sickness Policy and Procedure.

Return to Work Policy and Procedure.

 

This way you will be able to check those policies and procedure to see if the company has followed there own policies and procedures.

[littlemissy]

Thank you all for responding. Can't believe how stressful this ET process is.

Emmzzi - Thanks for the adjustment details... those are good examples of reasonable adjustments that I can use.

 

Ibruk -The respondent has been asked for the grievance multiple times! I have even wrote to the judge to complain now... By not completing the grievance, not paying me and dragging everything on, they are making my situation worse. Great advice about the details of the different roles and impact on me due to moving roles. New role was 100% more stressful with tight deadlines and very aggressive characters (got called a witch once for asking someone to do their job). My psychiatrist said I should have a phased return to work in a letter to my employer. I returned to work full time. No capability meeting was held. No medical reports were asked for. No OH was suggested (even though OH review is detailed as a process in our absent from work policy).

 

Stu007 - Thanks for asking that question as I have now checked the policies! As I mentioned to Ibruk, it appears they failed to follow policy with 'sickness' leave as I was never asked to see OH.

 

Do I need to start a new thread for ACAS questions?

ACAS have been involved in the case but actually made the process more stressful. They gave me a deadline to return a 'statement of loss' and I forgot to put 'sent without prejudice' in the statement of loss.

Do you think this matters?

 

ACAS also advised me to accept a small amount to settle the case and said the amount would get smaller as the tribunal went on. When I reviewed the figures, it was actually my statutory rights that I was being offered!

Has anyone else had issues with ACAS?

 

Feeling more positive now. Thank you.

[lbruk]

ACAS will try to get the settlement before the tribunal and generally they will be ok about it. I had very set ideas and i told my conciliator that, so she knew where i stood before she even started the process!

 

ACAS do not have the power to order you to do anything by any date - only the tribunal can do that, they are there in an advisory capacity only. I'd be going nuts at the ACAS person if i were you! Never accept the first offer from the respondent, never never never lol.

 

OK so your PCP will be that they ignored all medical advice that they had, they hadn't requested further information, the didn't refer you to OH, they didn't hold a meeting to find out what you were/were not capable of doing.

 

If i were you i wouldn't settle for anything! You have some great points and as long as you focus on these few things - you'll scare the sh*t out of them. Read up on Section 20 of the Equality Act, the guide i have attached is excellent, i have also added a guide for schedule of loss.

 

Disability Discrimination and the sections of the Equality Act are hard to get your head around - I have been through exactly what you are going through - I represented myself and won (in my eyes even though we settled lol) mine was to do with PTSD, depression and anxiety, so i have extensive experience in this.

Schedule of loss (2).xls

employercode.pdf

[littlemissy]

We thought about complaining about ACAS even so far as we obtained the conciliators managers details but then decided we need to choose our battles. We now intend to keep ACAS at arms length, i.e if we get another offer they can tell us the amount and then end of conversation whilst we review.

 

Thanks for the files! I will check them out. Also thanks for the confidence in my case. To be honest I have loads of evidence in email where I am saying I need help because of my situation and they did nothing to help apart give me more pressure - this is where direct discrimination comes in due others in the same role not being given the same pressure. We'll probably end up settling because I think we have a strong case (maybe that is why they won't respond to my grievance or disability questionnaire), and the respondent, who is one of the largest companies in the world, won't look good in court!

[lbruk]

yup, the larger companies are generally very shortsighted and make basic errors, as well as not wanting to go to the tribunal itself.

 

The closer you get the more they will start to panic, a lot of companies dont actually believe that you will take them to tribunal, and certainly the company i worked for were extremely arrogant and didnt believe that they had done anything wrong, right up to the day we settled.

 

If you are that far in, then dont worry about the grievance, it will go against them that they have not followed a fair procedure. I fact they have not followed the ACAS code for disciplinary and grievance. A fact that can increase your payment by the tribunal by up to 25%

 

Where abouts are you in the process? how long ago did you submit your et1?

[littlemissy]

My grievance was submitted 7 months ago this week but still no response...

My ET1 was submitted in May.

The initial ET3 was due back in June but the respondent was allowed an extension. The respondent also benefitted from an incredibly slow court response.

The ET3 extension was until last week. I am awaiting the court response.

I am beginning to think the respondent will request another extension as they clearly don't want to respond to my grievance! This process is really slow and torturous particularly as I am not being paid so I have no money! Totally feel like giving up, to save my sanity, even though I have been told I have a strong case.

 

My judgement is a bit cloudy at the moment so maybe some of you could highlight the benefits/drawbacks of the following (please ) :

 

As I was assaulted, my story featured in the national press. I was offered money to sell my story to some magazines and The Sun.

 

Is it a stupid idea to go to the press now highlighting the fact my employer used the fact I was assaulted against me? The money would be very, very useful but I am concerned I would really wind up my employer which would then make my life even worse. Any thoughts?

[honeybee13]

Hello there.

 

Are you saying that you want to tell the press about an employer that you still work for, please? Or are you saying that your case is going through the ET system and you've left?

 

I'm not a legal expert and I don't know if sub judice applies to ET cases, but depending on what you say, I can see it might make things worse for you.

 

The press don't always seem to act in the best interests of the person who's the centre of the story, I would proceed with caution. Hopefully the guys will be along later with more advice for you.

 

My best, HB

[littlemissy]

Yes, it is the employer I still officially work for. So I think your right, I could cause a whole heap of trouble!!

I am just clutching at straws because of the frustration of them refusing to respond to any of my claims after 7 months... and because of that my situation is getting worse not better.

Thanks for knocking some sense into me!!

[lbruk]

I think that you really need to forget about the grievance and continue with the ET. The ET 3 can take up to 8 weeks to reach you once it has been submitted by the respondent. If you havent already - phone the tribunal and ask if they have received it - generally they will email it to you when you are on the phone.

[stu007]

Hi

 

I have to agree you really need to concentrate on one thing at the moment and that should be your ET (forget the Grievance and them not responding think of it this way it only goes against the employer the failure to deal with a Grievance).

[littlemissy]

See next post...

Edited October 5, 2012 by littlemissy

[littlemissy]

Called the E.T. and the respondent has failed to submit ET3 or provide status update.

 

ET1 submitted May. ET3 was never provided by responded but a 'Stay of Proceedings' was granted to the respondent until 28th Sept. The judge asked all parties to report position by then. I responded by asking for no further extensions to be granted (I consider another extension unjust since I am not being paid and I am signed off work on sick leave with little hope of recovery whilst my employers fail to make or offer to make reasonable adjustments).

 

The respondent has not reported their position (due 28th Sept).

 

Does the stay of proceedings mean the respondent didn't have to provide an ET3 by 28th September (only a progress status)?

Does the court have grounds to extend the Stay further even though the respondent has not replied?

Any ideas what I do to try to push this forward?

 

I have only raised one E.T. claim and no civil claims so can't see why the delay.

 

Thanks!

[littlemissy]

Myself and the respondent have received a response from the court already! The respondent has 2 weeks to provide a particularised response setting out the matters upon which they intend to rely at the Hearing.