disability discrimination & failure to provide a clean & safe working environment - ** RESOLVED **

[ocd2000]

I have a preliminary tribunal hearing on monday for disability discrimination & failure to provide a clean & safe working environment. Lost a years income so far and ACAS have just had an offer from my employer to settle out of court for £1,500 lol

They claim the court has no jurisdiction to hear my case & this will become apparent on monday. Is this a last minute scare tactic? Surely the court decides if it has jurisdiction to hear my case or not?

It looks like they are trying to apply pressure last minute as the offer was made at 4.45pm & expired at 5pm, meaning i didn't even get chance to respond to them anyway.

ACAS say from experience when an employer says it believes the court has no jurisdiction to hear a case, it usually means they are going to ask to strike it out & persue the complainant for costs.

I have evidence to back my complaint, which will bring their defence into question. I've never done this before, please ask what further details you need so i can hopefully get a bit of advice. I'll answer as well as i can.

 

thank you for reading.

[BankFodder]

@Emmzzi

 

Please monitor this thread - I have flagged this to someone who is very knowledgeable in this area

[ocd2000]

Thank you so much. Ive got it on notification. I have a long back story but it will be a wall of text, so probably more helpful if i just answer the relevant questions people need from me in order to advise.

Edited February 5, 2020 by Mld2072

[Emmzzi]

Hello,

 

15 minutes to consider an offer is derisory and shouldn't have a negative impact on you.

 

You'd normally only have costs awarded against you if your claim was vindictive/ malicious.  So possibly more scare tactics there also.

 

If the court decide they don't have jurisdiction they will reject the claim, so again, not for your former employer to decide.

 

Really I am unsure what they are trying to do here. It's such a small amount, it feels like game playing. I assume your claim is covered by page 19 of this? https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/792702/t420-eng.pdf

 

In which case, crack on.

 

 

[ocd2000]

Well disability yes. I made it known at interview that i had undergone extensive surgery for degenerative spine disease, which was success - i then found myself working in filthy unsanitary conditions and sitting on broken chairs for 12hrs a day for 4 months in spite of repeated complaints to management. I have all texts & emails of complaints made over those 4 months before HR were even made aware. Basically i went over managers head after my complaints fell on deaf ears & told HR myself, at which point it hit the fan and the manager resigned.

[ocd2000]

So September 2018 first complaint, November 2018 second complaint, then January 2019 i went to HR. They are not aware i have all the texts and emails & that management knew for months there was a welfare issue. Thats my trump card.

Edited February 5, 2020 by Mld2072

[Emmzzi]

Unsanitary is gross but not the point here; bad back and rubbish chairs is.

 

Do you have

 

a) support that you are considered to have a disability under the equality act, for example, a GPs report which you gave your employer? (you say your surgery was a success so it is far from cut and dried you have a disability)

b) evidence of your request for reasonable adjustments?

 

I am unclear if you were dismissed or resigned; that may also have an impact. 

Edited February 5, 2020 by Emmzzi

[ocd2000]

Well i mean the surgery was successful and well healed until i found myself sitting on broken chairs, i am now having to go back to see an orthopaedic surgeon. I have medical evidence that it is a disability yes, but  I didn't give them a report when they employed me as i wasn't asked & it never came into the interview?

 

I have the email i sent welfare telling them i was still sitting on a broken chair and it was damaging my back. But it wasn't replaced until a month after i went sick & no alternative was offered.

 

I have been on sick leave a year - they wont terminate my contract even though I'm on UC as limited capability for work.

[Emmzzi]

I am confused about why this is an ET and not an injury claim.

 

They are under no obligation to terminate your contract.

[ocd2000]

The complaint was failing to provide a safe clean working environment & disability discrimination in falling to rectify the broken chairs. Do i not have a case then?

[Emmzzi]

1 minute ago, Mld2072 said:

The complaint was failing to provide a safe clean working environment & disability discrimination in falling to rectify the broken chairs. Do i not have a case then?

 

I'm not sure. Working environment - I would have raised with the Health and Safety Executive. 

 

There is a difference between *causing* a disability,  discrimination due to a disability, and failure to make reasonable adjustments.  Bit grey for me; I am not sure I would consider you disabled at the outset if your surgery worked; but with a pre existing condition, it would also be hard to say they caused the injury. 

 

What exactly did you put on your claim form?

[ocd2000]

The condition is not curable. Surgery just gives you more years of active life before further degeneration. It's life long. But certainly not helped by broken chairs. They admit the conditions were unacceptable. But dispute there is a disability. 

 

In fairness i filled the form in over a year ago. i can't remember the exact wording.I put on the claim form pretty much what i have put on here, that i was working in filthy unsanitary conditions which effected my mental health & sitting on broken furniture in spite of months of complaints to management.

Edited February 5, 2020 by Mld2072

[Emmzzi]

My belief is that:-

 

1) they haven't unfairly dismissed you - you have not been dismissed at all. Presumably if you were well enough to work again, you could turn up and work.

 

2) they haven't discriminated because of your disability - I assume everyone gets rubbish furniture!

 

3) you also need to claim within 3 months of the incident - it's been a year?

 

You MAY have something in the area of failing to make reasonable adjustments - but the court need to decide if you have a disability. It's not certain.

 

Therefore, I am unsure if you have a valid ET claim. My gut is saying it should be an HSE complaint, which is usually magistrate court, not an ET, to resolve

 

https://www.compactlaw.co.uk/free-legal-articles/health-and-safety-at-work.html

 

That would leave you making a civil claim for injury - no win/ no fee specialist lawyer for a view would not be a bad shout

 

Report to HSE here

 

https://www.hse.gov.uk/contact/concerns.htm

Edited February 5, 2020 by Emmzzi

[ocd2000]

20 minutes ago, Mld2072 said:

The condition is not curable. Surgery just gives you more years of active life before further degeneration. It's life long. But certainly not helped by broken chairs. They admit the conditions were unacceptable. But dispute there is a disability. 

 

In fairness i filled the form in over a year ago. i can't remember the exact wording.I put on the claim form pretty much what i have put on here, that i was working in filthy unsanitary conditions which effected my mental health & sitting on broken furniture in spite of months of complaints to management.

 

[ocd2000]

I'm not claiming unfair dismissal. I was not well enough to return, hence why I am now on benefits for limited capability.

 

I did claim within 3 months. I've been waiting a year for the hearing. 

 

I told them the furniture was causing problems with my back & have evidence i did so, but it was not replaced. 

 

 

Edited February 5, 2020 by Mld2072

[Emmzzi]

So as I say, possible reasonable adjustments failure. You will need to provide proof you have a disability, if it gets that far. Difficult to advise further without knowing what you said you were claiming for in detail; try and get a copy of your form from the court.

[ocd2000]

Too late for that. The hearing is monday, I'll never get a copy in time. I have proof i have a disability,i have all the relevant medical reports & evidence this is long term & effects my ability. 

 

'If' it gets that far? Do you think i don't really have a case here then?

[Emmzzi]

I'm saying that your paperwork suggesting you have a disability is not the same thing as the court saying you had a disability in the relevant time period. It is the court who decide.

 

I HOPE you wrote failure to make reasonable adjustments, but neither of us know that, because neither of us have the form!

 

So I don't know if you have a case, because there isn't enough information to make that call.  Fingers crossed though!

[ocd2000]

As i said, it was filled in a year ago & impossible to remember the exact wording. I realise that's relevant but my memory doesn't go back that far. 

 

This is just preliminary to establish facts as far as i am aware. 

[Emmzzi]

Do you have the letter telling you what will be discussed? Any clues there?

 

 

https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals/preparing-an-employment-tribunal-case/

 

 

[ocd2000]

I've just had another call from ACAS this time with a 15min deadline for the same offer.

 

The employer says they will instruct a barrister to get the claim struck out on monday and persue me for costs. They accept the conditions were unacceptable but  argue that if the situation was so bad i should have left & claimed constructive dismissal.

 

It was zero hours & if i didn't work my rent didnt get paid. I couldn't just not work.

 

It's scaring me now. I don't know what to do?

[Emmzzi]

If the case it truly hopeless, I don't understand why they need a barrister.

 

The claim may be misguided, but it doesn't sound malicious.

 

I am sorry i can;t give proper advice without knowing what your claim actually was. Have you tried calling the court? They are often very helpful especially to the lay person. You may also want to see if any hearings are scheduled for today or tomorrow that you can observe, so you understand what will happen.

 

 

[ocd2000]

Certainly not a malicious claim no. Im waiting for a call from a solicitor to talk it through anyway.

 

Bearing in mind this is only preliminary a barrister seems a tad heavy handed. 

[ocd2000]

Ok i fou d my claim form. The wording is below.

 

 

I was made to work in filthy unsanitary conditions for 5 months, office filthy & infested with vermin posing
disease risk, made to sit on a broken chair for 5 months despite making it known to interviewer at
recruitment in 2015 that i had undergone previous major back surgery. Over 5 months of complaining to
line manager most complaints were ignored, i became ill from the mental stress of not getting support
from employer as conditions were so filthy and unhygienic it caused depression & nothing was being done
about it. First complaint 9th September 2018 nothing done about conditions until 15th january 2019. Vermin
openly defecating and urinating all over work station, all over fridge & microwave and stationary covered
in droppings as well as worktops and food preparation areas. Made repeated complaints between august
and january to management and most were not responded to resulting in being put at risk of disease even
longer by having to eat from contaminated surfaces. No cleaning carried out inside security office for
several years previously. Suffered severe back pain as a result of the broken chair i was made to sit on
for 12hrs a day over a 5 month period and was signed off sick by doctor on 4th february 2019 and given
pain medication. Have photographed conditions in great detail and i am aware other colleagues have
also complained about the conditions repeatedly & also not had a response a number of times from
management. In January 2019 only half of the office was cleaned, the remaining half to this day is still
heavily contaminated with droppings and urine of vermin. Broken chair was not replaced until 6 weeks
after i was signed off sick and was only done because another colleague complained it was also hurting
his back. I asked to be transferred elsewhere but was only offered sites in locations employer knew that i
could not afford to commute to making it impossible for me to accept, and employer has now applied
pressure on me to either return to the site which caused my ill health or said they will terminate my
contract on grounds they have no alternative work for me, which makes me feel i am bullied by them to
return to the site in question against my will or face unemployment.

[Emmzzi]

Your best shot might be failure to make a reasonable adjustment for a disability.

 

But I would ALSO report to HSE

 

AND see if you have an injury claim

 

Can you demonstrate you have tried to mitigate your losses i.e. do you have job applications etc since it became clear you could not work there?