Equality Act 2010 - section 15 guidance needed please

[TheBrightSide]

Hi there, first post so I hope it makes sense...

 

Can anyone give me a brief understanding of section 15 of the Equality Act 2010 please (in layman's terms) as I'm trying to help my sister with a work problem and I think it might be relevant. She is a member of a union but they haven't been much help!

 

It's relating to an actionable attendance policy at her work. She is disabled under the definition of the act and is employed by a large public sector organisation.

 

She is rarely off work except with disability-related sickness (this has happened 6 times in the 24 years she has worked for them) and when she is it always lasts a few months and therefore breaches the policy guidelines, even though they relax the rules slightly for disabled employees. i.e. in one year

Policy - 3 periods or 8 days

Disabled employees usually 4 periods or 11 days

 

She has been in work for 22 months without any sickness but then was taken ill and has been off for eight weeks and is due back at the end of March on a return to work plan (reduced hours for five weeks and weekly management meetings). She went to a sickness meeting last week and was told in passing that they will not put up with this level of sickness anymore and mentioned capability. She always takes personal responsibility for her health, takes her meds, lets manager know if a problem is developing, goes to the doctors/counselling etc.

 

My question is that because of her disability when she is of sick she has always broken the actionable attendance policy which puts her at risk of being dismissed. Would it be reasonable to ask that her attendance be ignored under section 15?

 

Just as an aside she has been off with depression and anxiety caused by work related stress.

 

Any help would be much appreciated.

Thanks Dex

[obiter dictum]

How many employees in the organisation. There is case law on this found against the employer in not making reasonable adjustments where the employer had thousands of staff. Being covered under the Act you have a status of "Protected Characteristics"

 

 

For the employer to go against this the employer will need an "Objective Justification" or it will be Direct Discrimination. For any absence connected with your protected characteristic will normally be exempt from the attendance procedure though they can still call you in for a review. Capability may be an issue depending on the absence length and size of the employer. It is deciding what is reasonable under the circumstances and yours seems a bit draconian the attendance procedure

[TheBrightSide]

Hi, there are about 4,500 employees.

[Emmzzi]

An increased allowance would be reasonable but not *all* absences to be discounted. If it's eight weeks plus a phased return every time she is ill it's averaging at 3 or so weeks a year that she isn't in work full time. If she was off for 8 weeks, back for 22 months, off for 8 weeks, again, that's high even with adjustments.

 

There's no magic formula that says what is reasonable however; it is case by case. My usual question is "are you doing everything you can to stay in work"? eg people with fatigue conditions shouldn't go to all weekend raves then call in sick...

[TheBrightSide]

Yes, she does everything she can to stay in work.

She rarely goes anywhere because of her conditions.

Takes all her medication without fail,

Goes to counselling,

 

Attends the doctors and Occupational health and follows their advice.

Think the problem is possibly a management one. Line managers change frequently because of the size of the organisation and so the health and safety/HR assessment she had done in 2010 wasn't followed after an office move/departmental change, it relates to her work environment and how she is to be managed.

 

She tried to raise it on several occasions and was told it was in hand but nothing was sorted. As months went on her condition deteriorated but she stayed at work. Eventually she had a breakdown which her doctor has put down as work related.

I know she is my sister and as such I am probably biased but I can’t see what else she could have done to stay well.

 

This is why I was curious about section 15. I guess being on actionable attendance will generate even greater stress and could end up doing more harm to her health.

[obiter dictum]

it seems to me she needs another work place risk assessment to identify any reasonable adjustments if the last one was 2010. Do you have a health and safety officer as this will come under:

 

 

http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made

[TheBrightSide]

That's a good point.

The assessment was supposed to be revisited every year as an HR process but never has been despite her asking every year to get it done.

 

The one positive thing in all this is she does everything in written form which is one of the ways she manages her condition.

 

This means she can show that she was asking for this to be completed which I guess is part of her personal responsibility to manage her health and stay well

[Emmzzi]

when was her last occupational health appointment? and what did the report say?

[TheBrightSide]

It was done in the first week in February and looks to be very supportive.

 

It said that she did everything to keep herself well and can manage her conditions.

 

She needed management to be supportive and transparent in their dealings.

 

Had to have a suitable work environment

[Emmzzi]

but it did not suggest altered trigger points for attendance management? that's a problem

[TheBrightSide]

Ah I see what you mean. I asked my sister and it was never mentioned at the appointment.

Just looking at the referral letter from her management and it never asked specifically about attendance just about her ability to do her role or if she was too vulnerable to perform her role.

She is due to have another occupational health appointment in a few weeks, is it worth getting her to ask?

 

 

Also is it worth getting a GPs medical report fully documenting her conditions and how they manifest themselves and how they need to be managed,

 

 

I'm confused about whose side occupational health are on, are they supposed to be neutral?

[SabreSheep]

What is the companys sickness policy for disability? If there is one?

[TheBrightSide]

Wow there are so many polices it's unbelievable....

There is a disability policy (8 years old) which says disability related sickness absence can be discounted but doesn't have to be it's at managerial discretion.

 

Also an unacceptable sickness levels policy (11 years old) which says if capability action is being taken she needs to be invited to a formal interview where targets will be set and timescales monitored.

This has never happened as yet only been to sickness meetings.

 

And a recoup duties policy (8 years old) which says a risk assessment should be performed every time someone goes on recuperating duties and this should be put on the employee file. This has never happened.

 

I guess the thing she has to do is ask which policy they are acting under and make sure it is being followed??

 

 

This was why I was curious about section 15 of the equality act, the policies are so old they all pre-date the 2010 act and only mention the DDA.

[SabreSheep]

OK i see one possible route then but it may not be the first route to take.

 

The would in theory be an option to lodge a formal grievance against the manager if the sickness allowance was not discounted.

[TheBrightSide]

That sounds a good idea, I've said I'll help her draft the grievance if it comes to it.

She's going to go back into work and see which formal arrangements they try to put her on then I'll post an update

Thanks for all the advice,

[Emmzzi]

those policies can all be in place at the same time. They are compatible.

 

OH don't take sides per se. So do ask the question of them.

 

How many weeks has she had off sick and on short hours in the last 3 years, all in?

 

Don't go the greivance route if sick discounting is "managerial discretion" and there's no Occ Health guidance. Appeal against attendance policy is the less irritating route for the boss - and you need the boss on side or life will be hell.

 

It's also possible a warning is entirely appropriate. If it is - there's no point kicking off.... just head down and stay in work by whatever means possible

[TheBrightSide]

In the last four years, in addition to her current sickness, she was off once for seven weeks with six weeks reduced hours. In the four years prior to that 17 days.

The only attendance appeal seems to be related to termination under the policy.

She's never had a warning so she could accept one and keep quiet, although personally I think she will find the whole process really stressful.

Edited March 8, 2015 by TheBrightSide

[Emmzzi]

So she's hitting about 3.5 weeks a year off, plus the same amount in rehab hours?

 

I would say a warning is reasnable and to be expected. Personally I would advise her that way, thinking of her stress levels. Startig an unwinnable fight probably won't help.

 

The question the employer will ask is, "is she fit to fulfil the terms of her contract"?

 

If you can get some changes to make that easier for her, terrific.

 

Has she thought about part time hours?

[TheBrightSide]

My sister has said she will attend when invited to the sickness meeting about the warning then appeal the warning on the basis she took personal responsibility for her health and if her employers had acted in a timely manner she wouldn't have ended up going off sick in the first place. See what happens from there will post an update when I get one.

 

I'm still curious about section 15 of the Equality Act, does anyone have any insight.....just an example preferably relating to mental health please.

[Emmzzi]

http://www.personneltoday.com/hr/legal-opinion-the-new-disability-discrimination-regime-under-the-equality-act-2010/

 

However it is not a catch all to stay in employment if unable to fulfil the terms of your ontract... I don't think it is the nirvana you are hoping for.

[LifeIsGood]

I'm curious about what duty of care is owed by an employer. Surely if they knew she was ill and didn't act isn't that a Health & Safety issue?? If they didn't act are they not breaching her contract.

[Emmzzi]

The course of action there would be an industrial injury claim, which is near impossible to prove (but not totally impossible) for mental health issues

 

.It does not mean they cannot progress with an attendance management procedure.

[TheBrightSide]

http://www.personneltoday.com/hr/legal-opinion-the-new-disability-discrimination-regime-under-the-equality-act-2010/

 

However it is not a catch all to stay in employment if unable to fulfil the terms of your ontract... I don't think it is the nirvana you are hoping for.

 

Thank you, that's a brilliant link, explains it really welI.

[Emmzzi]

Do let us know how it goes and ask more questions if you have them.