Smokejumper's ET thread

[smokejumper]

I called the law firm, but very evasive and wanted £22000 to represent me.

 

Then sent an email to the pol fed rep and she said she would pass it on.

 

So at the moment can't find details to use as a precedent, shame really as it would be ideal.

Smokejumper: any update?

[smokejumper]

Trying to write out info for the tribunal.

 

I am being disciplined for actions resulting from my illness(disability).

 

What part of the equality act would be relevant and what can I use as a comparator.

 

Would a comparator be that if I didn't have the illness, then I wouldn't have carried out the actions alleged

 

or a non disabled person would not have carried out the allegations because they are not ill and can prevent themselves.

 

I'm wondering what section and comparator they used in the case in the police magazine. I can't get any info on the case.

[Pusillanimous]

Get an expert witness - you can google this. The tribunal will only believe a doctor. You need to think very carefully who the correct comaparator would be. Argue in the alternative (direct and indirect). Also include Reasonable Adjustment, assuming your employer knew of your disability. Was it on your claim form?

[phaitun]

hey smoke I been away from the forum for a bit due to ongoing issues with my own ET and work probs. Try the ET service or local court where the police officer thing happened.

 

Also look into the recent court case where the police and leisure centre assistants were found guilty of discrimination and other offences when they tried to forcibly remove the kid with Autism from the swimming pool.

It was a recent case and made the headlines. May be some useful stuff there as the kid was deemed not responsible for his behavior due to his illness and the carers told all police and staff of his condition before they dragged him out of the pool.

 

It seems your battle may come to a head soon, good luck and keep

fighting. Check out Bullyonline for information on how bullying in work can cause PTSD and similar.

I am sure you will find a lawyer willing to help you even if it's the Pro Bono service or similar.

I just had the employers response to my ET through and I've been up all night writing a fully documented and evidenced blowing their alleged defense out of the water and then some

 

keep going mate, my union rep says that 98% of the cases they dealt with over last 3 years were finalized on the steps of the court ten minutes before the hearing was about to start. Public sector employers are so bad with EA that they don't want any binding cases over them

[phaitun]

One more thought I had also reference the employers disciplinary procedure-

Let them carry on with their silly mistakes

 

You are very sick

You were very sick when you made your mistakes

They new you were sick

They did nothing to help you

You made mistakes

They punished, victimized and bullied you about those mistakes you made when you were sick

This made you more sick

They have continued with their PCP (internal discipline procedure) and are therefore continuing to punish you

 

It may well be that for the sake of complete openers of the investigation that they are continuing with it.

this is actually good for you. I can understand how you feel victimized and bullied as I am at the same place as you at the moment.

 

You just need to hang in there and let it run it's course but you should be collecting every piece of evidence as you go along with their silly mistakes.

use every email, drs note, hr note and record to your advantage. even ones that seem to highly critical of you can be used to show the court the deep rooted discriminatory views of your senior management and HR dept.

learn to think outside of your personal feelings and use everything to your advantage at the end of the day you only have to be 50.01% right to win. You do not have to prove anything beyond reasonable doubt.

 

However if you have the documents use them to make it impossible for the other side to gain anything from those docs.

[smokejumper]

Thanks Phaitun, good advice there.

 

I rang the solicitors in the Police case and they didn't want to help with any details, its not even on their page boasting about previous cases, perhaps there is a gagging order. Can't as yet find anything via searches. Police federation couldn't give me any details either.

 

Your list of their mistakes is spot on, almost as if you knew the case ;-)

 

What stage are you at, have you had a CMD yet and got a hearing date.

 

My employer seems very interested and determined for me to have an independent phyc report, even though I have presented them with so much info from Drs, shrinks, hospitals and their own occ health depart, I can't see anyway they can claim I don't have a disability, seems strange they want an independent report, perhaps they are thinking they can get one that is not so independent .

[phaitun]

hey smoke I guess the same mistakes are made across the whole public sector, supervisors mostly been promoted well above their capabilities, nepotism resulting in wives/partners/family members being given jobs at hq in hr and occ health departments.

you have seen it the same in your outfit mate!

 

I went through the defense from my employers last few days- similar to yours they dispute the disability despite medical and documentary evidence in abundance.

I guess it's a test of the claimants resolve, they will try all sorts of shenanigans to try and unnerve us right up to the final round and then make a deal with a number of gagging clauses to prevent the cost of a tribunal. the unions will agree due to the money saved, the employer will agree as they will save money, the tribunal is happy as it is resolved and money is saved.

 

there is no real justice done for the claimant other than the fact they knew they were right.

 

that's the reality of it all, its a poor reflection on uk legal system but nonetheless at the end the claimant wins the moral high ground and a bit of cash for a lot of hassle. For me it is worth it and I want to go all the way to tribunal just to make my point. however the reality is that money talks!

 

CMD planned by telephone next month

[smokejumper]

Without getting too political, yes I think there are people that have been promoted above their skill level. We also have another scheme called accelerated promotion, which is aimed at staff that under represented in the organisation and this also presents other problems.

 

Previously all staff were promoted through the ranks and everyone had the same chance to gain promotion if they had the ability to do the job.

 

I answered your question briefly and quickly, hope I haven't started an argument with other forum users.

 

The statistic figures you quoted, were they for all ET claims or based just on the claims the union had taken out.

 

The CMD wasn't much of a problem in my case, all very pleasant and polite, all the paper work had been carried out by the otherside and was agreeable to me, as I have lots of evidence there didn't seem to be anything they could do to scupper the proceedings. Saying that it is only a meeting for the otherside to ask for info and judge gives time frames to supply and then they set a date for hearing, earliest was middle of next year ;-)

[smokejumper]

Anyone have an idea why my employer would wish to go for an independent phyc report and have to pay for it, when I have given them indisputable dr and hospital reports and their own OHS reports ( stating they believe I am covered under the DDA act).

 

Should I write to the tribunal and contest their( respondant) request for an independent report, as I understand it an independent report cannot say that the person is or is not covered under the act, only the tribunal can make that finding.

 

Are they clutching at straws, hoping the report will be in their favor.

[Emmzzi]

if they want a new report now I'd say they may be trying to offset their costs if you have a better prognosis than you did previously.

 

I can't see a good reason to refuse it however.

[smokejumper]

Can they use the report for other reasons, to stop me returning to work ?

[Emmzzi]

if your doctor says you are well and the OH doctor says you are not, that'd be quite unusual. But yes, in theory they could.

 

Are you well enough to work, or not?

[smokejumper]

I think I could be well enough with support and getting back to work would be a goal, but they seem to be doing all they can to prevent it.

 

I don't know if you remember I am still suspended and have been for 2 1/2 years now. but thats a complicated issue.

 

My dr knows me and my condition for 10 yrs and an independent phyc will have known me for an hr or less.

[Serendipity 42]

well I think they may need God on their side! I have never seen occi health overturn a GP opinion. But I am not an expert, just wanted to add my tuppence worth to the conversation and more importantly offer you some support.

 

Sorry to hear you are still struggling with this smokejumper and I hope that this works out well, I am still following.:grouphug:

[phaitun]

Smoke, the figures I quoted were from the union reps experience.

 

I just went back on an agreed phased recuperative plan, a week or so into it. the new boss decided it didn't suit his plans so I was called into a meeting with line manager and was told 'policy' dictates that the phased plan should be their version and not the one previously agreed with me, HR, Union and line manager.

 

as you can imagine my old loaf crumbled again and I am back on the sick feeling worse than before.

 

the plan for my return was that doing some constructive and meaningful work would be therapeutic and speed up recovery from depression!

 

if you go back get the terms and conditions in writing before you walk through the door. I was waiting for the report to be written up when I returned without it. now I am paying for it as my mental state is worse than before I went back.

 

Lawyer suggested filing another ET1 however I am also considering the civil route of a psychiatric injury being caused. the people involved have no idea of what they are supposed to do and the Hell that I am living with.

[phaitun]

there's nothing to lose from going to the independent psych, find out in advance who this would be and prepare a list of subjects that you wish to cover well in advance, make sure you ask the questions of qualifications, years practicing etc.

 

Do some research on the shrink beforehand, you will know what to expect.

 

An independent will usually provide an unbiased report but will also consider your suitability for I'll health retirement if this has been discussed or considered previously. may be an opportunity to free yourself from the hell they put you through

[smokejumper]

Phaitun,

Still trying to work out your screen name, either a bamboo shoot curry or a buddist practicitioner ;-)

 

Already experienced the same situation twice and same as you they said they would put it in writing but got suspended before that happened.

 

I don't think the lower management realise their responsibilities or the equality act, I mean yours and my back to work plans were not going to be forever, just a couple of months to help ease in to the work environment .

 

If I werent already mad, it would be enough to send you mad, its constant frustration trying to tell these muppets, yet when I blow my top and swear at a manager he gets full support with his supposed PTSD, it is almost laughable .

 

Enjoy your sick leave, it all adds to the overall f#@ck up they are making.

 

Regarding the independent psych, there will be a choice from 3, so will research them all, but already done a little research on likely ones and must say not impressed with what I see, just because they have a harley street address and written a couple of medical essays doesn't impress me or give confidence.

 

Anyway, its just a matter of dealing with these things as they are thrown at me. Looks like the organisation have lots of other problems to deal with at the moment ( I will say no more) so perhaps they are near melt down as well, hope so.

 

It,s good to talk to you or write at you, never can work out the correct wording for what we are doing.

 

I really need to get something done for the judges orders, but just can't get on with it, I suppose put a little down on paper and add to it or expand, then hopefully before I know it, it will be done......................easy, not!

[phaitun]

hey smoke no worries I think it's called forum corresponding

 

screen name is father in laws first name he is from SE Asia so not far off the mark lol

 

my old head won't let me stop researching and writing things for the judges and lawyer. I think the lawyer is getting fed up with me doing their job, trouble is I can't help it. everytime there's a development or issue I throw all of my energy and more into fighting these bullies and the incompetence I am surrounded with.

on this forum I can let off some steam, researching and writing helps to stop me from violent retribution.

I have learnt that the pen is mightier than the sword and despite how I feel I want to fight them (physically) I manage to just about control myself and write, research and write more.

 

Funny thing is that I only blew my top once and started to swear at line manager. I think I may be suffering from PTSD as I get flashbacks if I go near my old workplace and now I can not ever step inside the place without fear and anxiety. I have never been so afraid of anything in my life before, yet I know I could break the bullies in two with such ease.

this is how they operate in public sector use their rank to bully us, knowing if we retaliate we will end up in the ****e!

 

this forum and some others help a lot, it is good to know that I am not alone and many have walked similar paths and share their experiences and advice

from the goodness of their hearts.

 

there are people who care, strangers, but they have great moral fibre and are decent human beings. there is nothing that can be said that measures up to the humanity shown on all issues within this forum

[phaitun]

Hi Smoke an interesting ET case that may provide guidance although it was not binding is Perry v ISS Facility Services 2010 ET2500000.

Basically the ET held that an employer who had kept notes and monitored the claimant/employee's conduct should have made

reasonable adjustments as his behavior was a manifestation of his disability.

 

May be of some help to you. The ET transcript should be with the Tribunals service

Edited September 29, 2013 by phaitun

[smokejumper]

I'm putting together further info for the ET, I have to state the relevant sections of the act, that apply to each discrimination.

 

Do you know if you can put more than one section ie; can you put discrimination due to disability S15 and direct discrimination S13 for the same allegation or does it have to be one or the other?

 

My employer has seen my medical records, due to disclosure and want more info as to whether my actions were due to my illness.............looks like they may have woken up and are starting to actually take some notice.

 

thanks for the case history, I will study it in the morning.

[phaitun]

hi smoke, there is information on the equality act website that has a sample template ET1.

 

when I get to my PC later I'll add the link.

my interpretation is that if there is more than one act/section breached per incident then quote each one. eg sex and disability discrimination can arise from one single act.

[smokejumper]

Thanks Phat,

 

Already done the ET1, judge ordered me to give more info to respondent.

 

Found what I was looking for, but quite complex.

 

This example said something along the lines of claiming S15 discrimination due to disability and or alternatively S13 direct discrimination.

 

Then if they wiggle out of one you get em on the other ;-)

[phaitun]

To assist your thread and those following check this out, it may be of help

 

EMPLOYMENT TRIBUNAL - W v COMMISSIONER OF POLICE OF THE METROPOLIS

 

Whilst the following decision does not strictly bind other Employment Tribunals, it is considered to be a well-reasoned judgment and could be of benefit to other Police officers in similar situations.

 

FACTUAL SUMMARY CAN BE OBTAINED FROM THE TRIBUNAL SERVICE

In the case of W v Commissioner of Police of the Metropolis (ET Case Number 2201961/2012), the Employment Tribunal found that the MPS’ Professional Standards Department (“PSD”) discriminated against a disabled constable, when she was subjected to gross misconduct proceedings after an incident at work.

 

PC W was an officer who was working on restricted duties, due to long term mental health issues. During a difficult meeting with her line manager, PC W experienced a panic attack which caused her to try to flee the office in which the meeting was taking place. Her line manager sought to block the door to prevent her leaving, whereupon, PC W took hold of her line-manager’s arm, causing a minor injury to her manager.

 

PC W’s conduct was investigated and, despite providing a clear account of her panic attack and medical evidence from her GP also suggesting a panic attack had occurred, PSD pressed on with gross misconduct proceedings.

 

The misconduct proceedings were only discontinued by the panel at the final gross misconduct hearing itself, over a year later, based upon psychiatric evidence which had been obtained, which maintained a clear link between the alleged misconduct and PC W’s disability. Although the same psychiatric evidence was provided to PSD a month before the hearing, the decision was made to press on.

 

The Tribunal’s judgment

 

The Employment Tribunal upheld PC W’s claims for disability discrimination, specifically claims for a failure to make reasonable adjustments and for discrimination arising from disability. Whilst the Tribunal accepted that an initial misconduct investigation was warranted by virtue of the conduct alleged, it found that the main PSD officer involved had, during her investigation, simply “discounted the Claimant’s mental state” and “discounted the possibility that the panic attack caused the incident”.

 

The Tribunal found that PSD had viewed the incident “through the framework of the criminal law…rather than through a disability framework” which it noted was “unsurprising” given that the PSD officers involved had “no knowledge of the concept of adjusting for disability”. PSD had “never seriously considered whether it could or should adjust the disciplinary procedure”.

 

The Tribunal went on to hold that psychiatric evidence as to the link between the alleged misconduct and the disability should have been obtained much earlier by the MPS during the misconduct proceedings. Furthermore, it was held that the proper response to the psychiatric evidence should have been to discontinue the gross misconduct proceedings rather than pressing ahead to a full hearing.

 

Remedy and recommendations

 

PC W was awarded compensation for injury to her feelings.

 

Significantly, noting its “concern” that the MPS’ “disciplinary procedure, the investigating guide and the standard operating procedures do not refer to disability” and “that [PSD] staff have not received training in disability discrimination and that some of them still consider the outcome lenient”, the Tribunal made the following important recommendations:

 

All staff within the MPS’ PSD were to receive training in disability discrimination, the purpose being “to recognise a possible disability issue when it arises” and “to consider when an adjustment needs to be made”

The MPS’ misconduct standard operating procedure and investigation guide were to be subject to a full impact assessment in respect of disability issues

The steps are to be fully complied with by 24 January 2014.

Relevance to other cases

 

The principles outlined in this case should serve as a reminder to ensure that, where an officer, who has or may have a disability, is facing misconduct proceedings, any questions of disability are fully raised and addressed at an early stage of the investigation. This is particularly important where there is a direct link between the alleged misconduct and the disability, as in PC W’s case, and also where reasonable adjustments are required to assist the officer to participate effectively in the misconduct process.

[smokejumper]

Emmzzi,

 

You wrote the following in another post.

"Ok. So you wish to use your condition to explain why you took certain actions, which then presumably resulted in the employer taking action against you?

 

1) does your medical report explicitly state this kind of behaviour can be as a result of your condition - remember your disability is cancer, not stress, so it needs to link to the disability

2) would the employer have been aware of your condition at the time?"

 

I didn't want to hijack the other thread, particularly as it would mean I didn't have any sympathy for her personal problems.

 

The et want me to supply an answer to my employer and the tribunal, why I think they should carry out a different discipline process due to the above.

 

1 & 2 are yes big time. ( not cancer though ) and have conceded to me being disabled at all times and covered under the act, this is recorded by the ET, so one less hurdle.

 

i'm saying they are discriminating against me by taking out discipline action that will result in dismissal, due to the above scenario. I didn't strike anyone, but similar situation otherwise to the police woman case in my ET thread, if you remember.

 

Be nice to me, as I'm sensitive ;-)

[smokejumper]

Emmzzii, any ideas ?