Disablity Discrimination

[misha]

Hi ,

 

I have a query. I would appreciate your thoughtful advice and comments.

 

I am concerned about my mate's current employment situation. She had undergone a performance assessment a while ago and was recommended for a re-skilling training but her employer failed to send her to any retraining, instead they are asking her to accept a downgrade or leave them, virtually without anything. The fact is, she works with a monopoly employer and very unlikely to get any job either if she loses this one. Meanwhile, she had a private expert assessment whereby she finds out that she has an impairment (asperger's syndrome) that is lifelong and listed in the Equality Act as a disability, which the earlier assessment failed to spot it. My question is whether the performance assessment that was done before is now null and void for the reason of persons having an impairment at the time, which may have an impact on her performance.

 

There is now a possibility that my mate may have to claim for a constructive dismissal at some point due to her employers continuous mistreatment, however, she has got a couple of queries. Firstly, she would like to know if she has to resign from her post in order to bring a constructive dismissal, secondly, will she still be paid her salary until tribunal has dealt with the matter to a close and thirdly, or she doesn't necessarily need to resign to raise a constructive dismissal as someone told her she can-is that true?

 

Can anyone advice me please?

 

[Tally]

I think you're really going to have to see a solicitor about this.

 

Employers are required to make "reasonable adjustments" for disabled employees, but it is not an employer's responsibility to assess whether an employee may have a disability. The employee needs to declare their disability and state what adjustments they require. However, if a disability makes you incapable of doing the job even with adjustments, or the adjustments you need are not considered reasonable, an employer is allowed to dismiss you.

 

If you resign and then take up a case for constructive dismissal, you definitely will not receive any salary once you have left. Speak to a solicitor before resigning, as it may have to be handled a certain way. If you decide to remain in the job, you may still have a case for disability discrimination.

[misha]

Thank you Tally.

 

My mate has declared her disability and her GP also confirmed the same in writing the summery conclusion of the expert's report. Yet, her employer did not acknowledge that she has the disability instead they are asking her to be assessed by the occupational health if she has any illness that her GP insists. She feels this as discriminatory and wonders that this amounts to declining the experts report. She contends her performance assessment should be incorrect as the assessors fail to identify her impairment at the time and had that been spotted she wouldn't had to go through the assessment. In other words, if impairment is recognized the assessment is invalid. At this point, what else she can do to pursue the employer to do the reasonable adjustment? Is there any body or organisation that can help her in this regard?

[Tally]

There is nothing wrong with the performance assessment because at that time she did not ask for her disability to be taken into account. The assessment was to assess her performance in the job, and not to screen for disabilities. Employers are not expected to identify potential disabilities. This is what doctors are for.

 

It is perfectly reasonable for a person to be seen by occupational health if they claim they have a disability and request adjustments. Occupational health are the department which specialise in supporting disabled employees and making adjustments. Your friend needs to get hold of the company handbook or details of their procedure for dealing with disability, because it will outline what the normal process is. Seeing occupational health does sound completely normal though.

 

Your friend really needs to speak to her trade union, ACAS, or a solicitor about what she can realistically expect, because some of the things you are expecting are completely over and above what the law requires of an employer.

[misha]

There is nothing wrong with the performance assessment because at that time she did not ask for her disability to be taken into account. The assessment was to assess her performance in the job, and not to screen for disabilities. Employers are not expected to identify potential disabilities. This is what doctors are for.

 

It is perfectly reasonable for a person to be seen by occupational health if they claim they have a disability and request adjustments. Occupational health are the department which specialise in supporting disabled employees and making adjustments. Your friend needs to get hold of the company handbook or details of their procedure for dealing with disability, because it will outline what the normal process is. Seeing occupational health does sound completely normal though.

 

Your friend really needs to speak to her trade union, ACAS, or a solicitor about what she can realistically expect, because some of the things you are expecting are completely over and above what the law requires of an employer.

 

She was not aware of her disability at the time. Most interestingly, she was assessed by senior psychiatric consultants and psychologist as herself being a doctor, and their report contains so many elements to suggest a diagnosis of ASD but not considered as such led her friend to suggest she herself obtains an expert opinion. The assessors report considered many aspects of her performance and behavior as her incompetencies which are in fact attributable to her Asperger's. I am shocked to see people or organisation of such a position to be ignorant of this particular disability and equality act and continue to be discriminatory in their attitude, in fact these people are supposed to be more aware of this impairment and should be providing all sorts of support not persecution.

[baddad]

Hi Misha -

I think the observations Tally has made about work assessment, disability law and a new, undeclared diagnosis are right. I think the advice she's offered is sensible and practical, and her conclusion - that your expectations of the employer in this situation are unrealistic - is correct.

 

I don't know how anyone can attribute their incompetencies to Asperger's (?), but even if they could it would be a moot point as the underlying problem is that your friend is incapable of doing the job for which she is now employed, in areas of work which she herself did not declare would be problematic. It's irrelevant whether she was diagnosed before or after starting - she applied for the job saying she could fulfil that role and she can't. She didn't become incompetent at the point of diagnosis; as you say, Asperger's syndrome is a lifelong disability...

 

That may not be how you see it or your friend sees it, but debating that on the forum isn't going to help you move forward in any way, whereas the suggestions you've been offered to seek professional advice will.

 

L&P

 

BD

[bid]

Hi Misha,

 

You say your friend is a doctor.

 

A quick observation would be that if she is working somewhere like a research facility for example, then certain adjustments would be entirely reasonable and practicable (for example, written instructions rather than verbal).

 

However, if she is working somewhere like A&E, and for example struggles with the fact that everything is chaotic, with no set routine and life and death decisions need to be made very quickly, then I don't think it is a reasonable adjustment to challenge the fundamental nature of the job because of her AS.

 

I would agree with the others that this is an area that needs specialist legal advice.

 

Bid

[puffin]

Hi

 

You friend needs to make an appointment with a specialist employment lawyer as soon as possible to discuss options - personally I would be very wary of going down the constructive disamissal route unless it is the final resort as it is notoriously difficult to prove and the vvast majority of claims are unsuccessful

 

I am not sure why your friend is objecting to occupational health as this is normal procedure - occupational health are usually brought in to assess disabled and sick employees and make recommendations about the types of support, adaptations and adjustments that are needed. It may harm any legal case if the person does not cooperate with normal disability procedures - but the lawyer would be better able to advise on this

 

Mostly it will come down to what adjustments your friend will need to be able to function in the job and whether the type and level of adjustments would be reasonable. Employers are not required to completely reorganise and make adjustments beyond what is necessary

 

Your friend should also start to consider whether the "incompetencies" at work are a signal that a change of career should be considered - even with small adjustments will they be able to cope? Are they in the wrong job?? If reatraining for a new career is needed then perhaps this can be negotiated with the current employer. This happened to someone I know whose disability meant they could no longer continue with their career as a solicitor

[Adam Mars]

You certainly have to resign to claim constructive dismissal (you have to have been - effectively - dismissed, after all). You also need to resign in direct response to an employer's actions (or inactions), which in practice means resigning almost immediately after the action/situation which breaches employment rights, specific contract clauses or the implied clause in every employment contract of "mutual trust and goodwill". I happen to know this because I had to quit my job a few weeks ago, and I took legal advice about discrimination and constructive dismissal (and I've been down this road a few years ago with another employer). Constructive dismissal is a 'nuclear' option, which should only be pursued after all internal grievance procedures (and other internal avenues of resolution) have been exhausted. Constructive dismissal cases where the complainant has not made every reasonable effort to resolve the dispute are very unlikely to succeed, unless the action which prompts the resignation is extreme (extreme enough to make grievance procedures ineffective or inappropriate - refusing to tell you how to pursue a grievance, for example )

 

As for the performance appraisal, that will need to be redone in the light of the diagnosis. It doesn't matter whether your friend or her employer were aware of the disability at the time...they're aware of it now, it existed at the time and her performance needs to be reappraised with the diagnosis in mind (and with reasonable adjustments which might allow her to improve her performance in mind). It may be that there are no reasonable adjustments which could be made, nor any reasonable way to allow her to improve her performance, but that would need to be a considered conclusion based on evidence (and would need your friend to demonstrate a willingness to make and accept reasonable adjustments).

 

A final note: whoever 'wins' an Employment Tribunal case, everyone involved loses. It should be a last resort.

 

EDIT: No, she won't get paid between resigning and the Employment Tribunal case.

Edited September 22, 2011 by Adam Mars

[misha]

You certainly have to resign to claim constructive dismissal (you have to have been - effectively - dismissed, after all). You also need to resign in direct response to an employer's actions (or inactions), which in practice means resigning almost immediately after the action/situation which breaches employment rights, specific contract clauses or the implied clause in every employment contract of "mutual trust and goodwill". I happen to know this because I had to quit my job a few weeks ago, and I took legal advice about discrimination and constructive dismissal (and I've been down this road a few years ago with another employer). Constructive dismissal is a 'nuclear' option, which should only be pursued after all internal grievance procedures (and other internal avenues of resolution) have been exhausted. Constructive dismissal cases where the complainant has not made every reasonable effort to resolve the dispute are very unlikely to succeed, unless the action which prompts the resignation is extreme (extreme enough to make grievance procedures ineffective or inappropriate - refusing to tell you how to pursue a grievance, for example )

 

As for the performance appraisal, that will need to be redone in the light of the diagnosis. It doesn't matter whether your friend or her employer were aware of the disability at the time...they're aware of it now, it existed at the time and her performance needs to be reappraised with the diagnosis in mind (and with reasonable adjustments which might allow her to improve her performance in mind). It may be that there are no reasonable adjustments which could be made, nor any reasonable way to allow her to improve her performance, but that would need to be a considered conclusion based on evidence (and would need your friend to demonstrate a willingness to make and accept reasonable adjustments).

 

A final note: whoever 'wins' an Employment Tribunal case, everyone involved loses. It should be a last resort.

 

EDIT: No, she won't get paid between resigning and the Employment Tribunal case.

 

Thanks for your thoughtful comments! My friend also thinks the same as you. Employer should take the disability into consideration and make reasonable adjustments where appropriate. She hopes good sense will prevail!

[Sally44]

I agree you need expert advice.

 

As already stated a disability in any form may make a certain job difficult to perform, but reasonable adjustments should be made, and if those reasonable adjustments may amount to a change of department or specialism etc, then okay.

 

As a doctor with AS, I think your partner could be vulnerable if she resigns and finds herself unemployed, with a history of resigning or dismissal and a diagnosis of AS.

 

I would advise that you get some legal advice - you may find that advice via citizens advice as many have now joined forces with law centres etc. But you may need specialist legal advice, and advice regarding disability discrimination. As a doctor, does her professional body offer any support or advice?

 

If things are unbearable at work at the moment due to the current situation, would it be possible to get time of work due to 'stress' rather than resigning (if that if one of the main reasons they are considering resigning).

 

If constructive dismissal is the only route available (after expert legal advice has been taken), then so be it.

 

But it is very hard for anyone on this forum to make specific recommendations when we do not know the nature of the problem.

[Sally44]

I have also worked with employer Occupational Health as an advocate for my sister, who has a disability herself. I was concerned to begin with because my sister's employer does employ only disabled adults, but over the years those with "learning difficulties" have been moved out, so that my sister is now the only employee with a neurological disability - everyone else has a physical disability. A lot of pressure was being put on my sister to work faster, she developed a work related repetitive injury and also had other difficulties with communication and toiletting.

 

But I also got independent advice from our GP too, to confirm her difficulties, so that occupational health HAD TO make those reasonable adjustments to meet each of the difficulties. By getting the GP to see and refer my sister for all of her difficulties, we were able to go into occupational health meetings with the NHS notes and advice about what she needed, rather than just say what we thought she needed. And we did get some adjustments. My sister was off work for some months and we agreed a gradual return to work, she was given different work that she could cope with, using machinary she could handle and was confident on, and her communication difficulties were noted so that the manager and supervisor had to ensure she understood her working instructions. She was also allowed to take additional toilet breaks and was allowed to finish work earlier to allow her time to go to the toilet again before the factory was locked up. These adjustments reduced her overall anxiety considerably, and she has remained with the same employer now for over 30 years. And I know her employer would agree that my sister is one of their best employees (regarding attendance levels and performance - but not necessarily speed!).

 

So you may need to identify WHAT the difficulties are. At the moment I presume you just have the employer saying what she cannot or has not done. But if it is due to a disability, you need to identify what the difficulty or need is. Otherwise you don't know what adjustment to make.

[misha]

I have also worked with employer Occupational Health as an advocate for my sister, who has a disability herself. I was concerned to begin with because my sister's employer does employ only disabled adults, but over the years those with "learning difficulties" have been moved out, so that my sister is now the only employee with a neurological disability - everyone else has a physical disability. A lot of pressure was being put on my sister to work faster, she developed a work related repetitive injury and also had other difficulties with communication and toiletting.

 

But I also got independent advice from our GP too, to confirm her difficulties, so that occupational health HAD TO make those reasonable adjustments to meet each of the difficulties. By getting the GP to see and refer my sister for all of her difficulties, we were able to go into occupational health meetings with the NHS notes and advice about what she needed, rather than just say what we thought she needed. And we did get some adjustments. My sister was off work for some months and we agreed a gradual return to work, she was given different work that she could cope with, using machinary she could handle and was confident on, and her communication difficulties were noted so that the manager and supervisor had to ensure she understood her working instructions. She was also allowed to take additional toilet breaks and was allowed to finish work earlier to allow her time to go to the toilet again before the factory was locked up. These adjustments reduced her overall anxiety considerably, and she has remained with the same employer now for over 30 years. And I know her employer would agree that my sister is one of their best employees (regarding attendance levels and performance - but not necessarily speed!).

 

So you may need to identify WHAT the difficulties are. At the moment I presume you just have the employer saying what she cannot or has not done. But if it is due to a disability, you need to identify what the difficulty or need is. Otherwise you don't know what adjustment to make.

 

Thank you Sally44 for your comments. I find them helpful. Interestingly, my mate's general manager now wants to see her in order to help her returning to work, although its only 6/7 weeks that she is off sick, besides they haven't yet acknowledged her disability. she is taking some legal advice but feels need to be more informed herself about DDA and its various implication in employment and I am helping her.