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YOUR CONTRACT OF EMPLOYMENT / PUBLIC INTEREST DISCLOSURES
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Fair
Employment Law
Framing the case You must be in no doubt that this is a difficult jurisdiction. I considered very hard whether I should even give advice for self representation. I do believe that by applying some simple rules and understanding it can be tackled by a non legally represented Claimant although that view may not be supported by the tribunal that hears the case. So do it only if you are confident you understand where you stand in the process. You do need to research case law on this one and have read the narrative opposite. Bailli Legal Database -use key words opposite related to disability. Before even considering a Claim you must be confident that you fall into s.1. of the Act ( definition of Disabled Persons) in at least one of the statutory descriptors and you must be able to identify the disease or recognised condition you suffer from , the descriptor ( mobility , dexterity etc.) that applies to the impairment and description of the difficulty you have , in relation to that impairment or impairments ( if more than one), in carrying out the normal tasks of daily life. If you are disabled to any substantial effect you will know what difficulties you have and normally it is easy to find the relevant descriptor and describe the difficulties but whether easy or not your Claim has to sit within the Statutory Framework in respect of the impairments you suffer. You should also be aware of the adjustments you require ( or required) , whether these have been provided by the employer or not. You must be clear that if you are saying the employer could and should have applied adjustment, that the adjustment is one that it was practicable for the employer to apply , having regard to the cost and the alleviating effect. If the employer disputes that you are a disabled person the tribunal will make you produce a "disability statement" which is simply a written summary of everything I have produced above. If you have considered this properly at the initial stage this will not be difficult but the Tribunal will require you to produce proper medical evidence of the condition or illness you suffer from as well as its effects on daily life so a medical report will be required. You may already have this but if not obtain one as soon as you can- It will cost in the region of £60 from your GP. It is also useful to request copies of your medical notes at the same time. If the employer does not dispute the disability status , the case can proceed with a disability statement but at some point the tribunal will wish to know what the statutory grounds are so some sort of disability statement will be required. An example statement: " I suffer from a prolapsed disc in my lower back. This gives me pain and discomfort and affects my mobility. I find it difficult to sit or stand for prolonged periods. I also have difficulty getting in an out of cars and cannot drive for any length of time without pain and discomfort. I have had this condition since it was diagnosed in December 2007. The reasonable adjustments I required from my employer were a ban on long distance driving and a special posture seat at work , also timeouts during the day where I could lie down for a while when the pain was particularly bad" Having established that you are disabled and require reasonable adjustments it is now for you to establish with the tribunal that you suffered a detriment at work or were dismissed because of a reason relating to disability and if you establish that then you need to show that the employer had no justification for the treatment he gave , whether dismissal or otherwise , in that his reasons for acting in that way were neither "substantial" or "material" or that you were dismissed on grounds of disability before the employer applied reasonable adjustments. This latter test is the easiest. An employer cannot justify any disability discrimination if he has not at first attempted some reasonable adjustments to avoid the need to dismiss , assuming that such adjustments would alleviate any impairment. It is possible to attack the grounds of substantiality and materiality but unless the employer has acted on a whim and dismissed without any thought of the disability ( which he may well have done) this may be difficult. Just as an example an employer would not be justified in dismissing a disabled person because she or he required slightly different start and finish times or that they required disability aids to assist their mobility or dexterity whilst at work because neither of these two reasons are material or substantial reasons to dismiss anyone , let alone a disabled person. The provision of these adjustments would also be reasonable adjustments because they are likely not to cost much and have a significant benefit to the individual and so the employer could not justify a decision not to provide them. If the employer has a policy concerning disability , that needs to be scrutinised carefully to ensure that the employer has applied its own policy. If they have not then they that will weaken any justification defence since employers are expected to carry out their own policies. In summary : 1) Establish that you are disabled for the purposes of the Act 2) Connect the detriment suffered to a disability e.g. by excluding other reasons. 3) Seek to challenge any defence that treatment was justified. 4) Look to see if reasonable adjustments were provided before the treatment complained of. 5) Check the employer has carried out any policy he has on Disability.
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Fair Employment Law
Disability
Discrimination
A person discriminates against a disabled person , if , on the grounds of his/her disability , he treats the disabled person less favourably than he would treat a person NOT having that particular disability whose relevant circumstances , including his abilities, are the same or not materially different from those of the disabled person.” The reference to abilities simply means whether they normally do the type of work similar to that of the disabled person. ( i.e hard physical labour , office work , brain work , sitting , standing etc etc). This is very important- the comparison required under the Act is whether a disabled person suffers a detriment because of what the employer normally applies to his non disabled employees. A disabled person is defined by the Disability Discrimination Act 1995 as being a person who suffers, or who has in the past suffered from recognised illness or condition such that the person has "impairment" that affects their ability to carry out the day to activities of day to day life. The areas of difficulty are prescribed by the Act as being: Mobility , manual dexterity, physical coordination , continence, ability to lift carry or otherwise move everyday objects, speech hearing or eyesight, memory or ability to concentrate learn or understand and perception of risk of physical danger. Various conditions are deemed to be disabling conditions: progressive conditions such as cancer , multiple sclerosis or HIV infection even if at any given time the disease has not yet produced a substantial impairment. There are also a small class of persons who are registered as disabled on the regulations prior to 1995. Employees who are defined by s.1 of the Disability Discrimination Act 1995 on the criteria above are entitled to be treated in a way that, as far as reasonably practical , they do not suffer a detriment if the employer carries out a practice ,procedure or a requirement [i.e something that he would apply normally to all his employees disabled or otherwise ], if that practice etc would act disproportionately against a disabled person. In essence what an employer has to do is to treat a disabled person differently than a non disabled person so that the disabled person works in a framework which attempts to alleviate as far as practicable the difficulties experienced by the disabled person and enable them more easily to meet the challenges of the working environment. The mechanism that the employer applies to do this are by way of "reasonable adjustments". A reasonable adjustment , assuming the employer is under a duty to provide one , is any adjustment that seeks to alleviate the difficulty experienced by the disabled person and is cost effective in terms of the money expended against the benefit gained. Its a common misconception that Disability Discrimination cannot be justified –this is not true , an employer can justify most classes of indirect discrimination by saying that his reasons for the treatment were "material and substantial" -see s3A(3) of the Act in relation to materiality and substantiality and to explain simply a very difficult section of the statute the employer can say “look at what I have to accept from this employee -this cannot be right – I have put in all the adjustments that I can reasonably be expected to provide and I still cannot get any effective work from the employee - I cannot be expected to continue with this relationship” . A good example, flexing the arguments at the upper limit, would be for a disabled person to say “ I am disabled – you must pay me when I am off sick because of my disability otherwise I am being discriminated against ”- that’s been tried and failed. Or “ I am not able to come to work to do my job because of my disability – you cannot sack me”. That’s been tried and failed , time and time again. If an employee is unable to carry out the terms of the contract , even if with reasonable adjustments, then the employer can justify a dismissal although of course the justification defence is entirely dependant on the circumstances, for instance what could be justified in applying to a person who has a back injury but who does heavy manual labour would not be justified if the employee with a similar impairment worked in a office. On the other hand an employee CAN say – I want you to make special arrangements to assist me to come to work , or to stay at work , or to manage better whilst at work , if you do not provide them I will be unable to work. There is a huge difference. The only discrimination that cannot be justified is direct discrimination –example “we don’t employ people with facial disfigurements” or "we cannot be bothered catering for the needs of disabled persons" , again exaggerating & paraphrasing for clarity. An employer is justified in not applying adjustments if those adjustments would have no effect or would be disproportionately costly -s.3A(6).
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