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Hi everyone, I posting on behalf of my wife who is due to have a disciplinary meeting tomorrow due to her absence. I'll try to describe how this has managed to come about.

 

First off my wife has Type 2 Diabetes of which she does not have great control over and uses insulin to manage her diabetes, she is currently and has been treated for long term depression for which she takes medication, she also has carpal tunnel syndrome in both wrists. Her depression the doctor believes manifests itself from her Diabetes, we also have a disabled son who has a serious problem with his heart and has recently had his aortic & pulmonary valves replaced, and in addition to this I was left severely disabled following a car accident 3 years ago.

 

So to be fair she has a lot to be depressed over, however because of her diabetes she has been absent 2 times in six months due to very severe and recurrent water infections due to the high amounts of glucose in her urine, and recently she was absent with a severe viral infection which has triggered this meeting. I will add that all the absences were covered with a fit note from her GP to state her illnesses at the time of absence, my wife's GP has also wrote a letter recommending my wife be referred to occupational health for assessment due to her diabetes, depression & carpal tunnel.

 

My wife has recently requested her employer to make reasonable adjustments with regard to her absence as her doctor has suggested it is not unusual for her to be more prone to illness because of her diabetes and depression, she requested that instead of the usual 3 absences per 12 months as per the companies absence policy, she has requested adjustments for this to be increased to 5 absences per 12 months. This has been flat out refused by her employer and have said the meeting will proceed tomorrow as usual.

 

She has contacted ACAS today and they have stated that she is certainly covered under the Disability Discrimination Act 1995 with regard to her diabetes, they have also mentioned the Equality Act 2010 with reference to her depression as she has suffered mental health issues for the past 3-4 years now.

 

I would be grateful if someone could explain how the DDA 1995 and EA 2010 would aid my wife's case, as I clearly believe there is some form of discrimination going on here.

 

If all does not go well tomorrow she will almost certainly end up with a 1st stage written warning for 12 months which I believe is a bit harsh as surely her employer can't reasonably apply their one size fits all absence policy in the face of her ongoing disability.

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The DDA 1995 was superseded by the EA 2010, so ACAS are talking about one and the same thing - the fact that Diabetes is classed as a 'disability' under the Act, and the employer has a legal obligation to consider reasonable adjustments to make it easier to combine working with having the condition.

 

The normal 'reasonable' adjustment to be considered is for any absence caused by a disability to be measured separately from whatever would be the normal criteria for a non-disabled colleague. Therefore, if the employer has a normal requirement for absences to be kept below a certain level, above which a meeting without coffee might be forthcoming, then a disabled staff member should not have absences caused by their known condition measured in the same way - or at least there should be a higher trigger point. She should also be allowed the necessary consideration to inject in privacy at work, and to be permitted reasonable time and facilities to cater for blood sugar fluctuations etc - or to be allowed a biscuit or whatever form of glucose intake might be necessary whilst at her workstation.

 

A disability does not mean that the employer cannot - or should not - take steps to reduce absence, or to look at the capability of the employee to carry out their function, but they have to be extremely careful, with clear and demonstrable steps taken to show that the disability was carefully considered and that the employee has not been treated unfairly solely due to their condition.

 

So - at tomorrow's meeting (and if it is a disciplinary rather than an investigatory hearing, she must be given, and should try to take advantage of the right to be accompanied), your wife needs to ask specifically about the trigger points relating to disabled and non-disabled staff, and why the matter of her disability appears not to have been considered by the employer in accordance with the Equality Act.

 

From what you have said above, the employer needs to act very carefully here.


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Hi all, just an update, as what happened at the meeting was a little bizarre.

 

My wife's meeting went ahead, and at first it was adjourned until occupational health had seen her and GP report generated.

 

However after the meeting the personnel staff member went and had a chat with the departmental manager and one of the directors. Within 15 minutes of the first meeting being adjourned my wife was called back into a meeting and was given a written warning, which I feel was very bizarre.

 

I am honestly of the opinion that as well as being discriminated against due to disability, I also believe she is also being systematically victimised, as at first I felt the correct decision had been made to adjourn, however a short while later was then handed the warning which I think is a very bad judgement call.

 

My wife has since called the Equality Helpline and it is believed she has a strong case to bring under the Equality Act 2010, she has been advised to write and send an appeal recorded delivery to her employer which she has done today.

 

My wife said today she is waiting for Monday or Tuesday to come when the appeal letter lands on her employers desk, as she is almost certainly going to be called into another meeting to answer about the appeal being entered, I have just told her to just state that it is her right to appeal and to pass no further comment to additional questioning, and that she requests to be accompanied by a fellow employee. I have suggested she keep a diary handy to keep track of events and the name of any person who may accompany her to future meetings.

 

This is my opinion of why this situation has come about, I have 2 beliefs on the matter;

 

1. The company simply does not have a clue regarding the Equality Act and the request for adjustments to be made with regard to disabled staff, but this is no excuse there is plenty of advice out there as well as seeking the advice of a suitably qualified employment solicitor.

 

2. The company is well aware of the rights for disabled staff but chooses to ignore these rights because if adjustments are made for 1 employee many more could follow. This as funny as it seems is the most likely because the sneaky way in which they appear to be operating, which for obvious reasons I think is a reckless option to take as it will almost certainly leave themselves wide open to an ET claim.

 

I would be grateful if anyone else has any opinions on this and they way things may unfold?

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Hello there. I hope the guys will be along later.

 

I'm pleased that you rang the EHRC, was about to suggest that until I read further down your post. They've helped other people from the forum.

 

My best, HB


Illegitimi non carborundum

 

 

 

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3) the company is incompetent in process, not malicious

4) even if you allowed a margin for adjustment she's simply been off too much for the business to function well

 

Adjustments don't mean "as much time off as you like." You mention a number of 5 absences; if that's all at 3 or 4 days per absence, it's probably too much.

 

Is there a prior OH referal they may be relying on? If not you are correct there is a bit of an error in process here.


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3) the company is incompetent in process, not malicious

4) even if you allowed a margin for adjustment she's simply been off too much for the business to function well

 

Adjustments don't mean "as much time off as you like." You mention a number of 5 absences; if that's all at 3 or 4 days per absence, it's probably too much.

 

Is there a prior OH referal they may be relying on? If not you are correct there is a bit of an error in process here.

 

She totally understands she can't use disability as a passport to take time from work at will, she's had three two day absences all but 1 as a consequence of her diabetes in 11 months, so in mho she's not taking advantage of her illness.

 

There is no previous OH assessment, so I don't know what game they are playing other than I think they are walking the thinnest of lines in their handling of this matter.-

 

Me personally I think it's the type of company that if your face fits then no problem, otherwise your cards are marked. Might sound hard to believe but it seems a sad fact as other unfavourable staff have just "left the business" rather suddenly.

 

For the while I'll stand by my 2nd suggestion as I believe a company of over 250 employees would certainly know plenty on employment and disability issues. Something somewhere just doesn't seem right.

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