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Thread: Continued from previous post.

  1. #1

    Angry Continued from previous post.

    Continued from previous post apologies for length I hope you understand why.


    Another area where Chloe is being treated differently is when she needs to attend a medical appointment during work hours. (She does make every effort to get appointments outside work but sometimes cannot be avoided). On average Chloe needs to leave work on average for 2 hours once a fortnight to attend an appointment.
    When any other colleague has an essential appointment during work they are allowed to make the time back during their dinner hour so they don't lose pay. Chloe's employer has told her that as she is disabled she is not allowed to work the time back and must still take her dinner hour whether she feels able to work through it or not, so she loses the pay every time she has an appointment. She has not been offered the choice, because they said if they let her work through her dinner hour it would aggravate her condition leading to more absence. Chloe feels this is unfair and is penalising us financially.

    Other problems were caused when Chloe needed any more time off work due to her disability. She has good days and bad days with the pain. And some days (maybe once every 2-3 months) her pain is so bad she has to stay in bed for a couple of days and miss work.

    It's how her employer is treating her absence that is the latest frustration. They know they need to let her have time off due to her disability. But they have told her in writing she is no longer entitled to company sick pay any more, and the letter also says if she has sickness absence for any reason other than her disability it will lead to a further disciplinary (and as she is already on a final written warning for this it would mean dismissal).

    Chloe had last week off work as her pain was much worse than normal. She left work to go to A&E last Monday morning it was so bad, spreading down her left side she was unable to walk and I had to collect her from work and help her walk to the car as she won't use her stick at work. Doctor at A&E said he wasn't a pain specialist and was unwilling to make a diagnosis so asked her to see pain clinic. We managed to get a cancelled appointment later in the week where she was told that anaesthetic injections she received earlier in the year had been done in the wrong place by a trainee so they would get her in for another injection.

    Chloe went back to work yesterday after last week off and was straight away taken to an absence review meeting lasting one hour with her two line managers. She was asked the same question, worded differently, no less than 15 times during this conversation, "so the pain you were off with last week, it wasn't related to your back was it". yes it was. "So it went down your leg, your leg isn't your back is it". The nerves drive the pain down from the back. "So you had pain in your foot too, this must mean the absence was unrelated to your back", and so it went on you get the impression.

    The outcome of this absence review was that they will get occupational health out once again the week after next to reassess Chloe's workstation, where they will once again conclude she needs a chair that they won't get her.

    They refuse to accept Chloe has a disablility, they do not understand their responsibilities as an employer, writing to HR does not get satisfactory results, they ignore the advice of their own occupational health worker, other staff regularly mock her, she breaks down in tears at her desk sometimes at how she is treated and being singled out and mocked at being different to the other employers. It summed it all up when they told her they wouldn't have taken her on had they known she was disabled.

    It is just so frustrating!!!!!!!!!!!! Sorry this is so long but I hope I have conveyed the reasons for our frustration. Chloe needs the job as we can't afford the mortgage without it. Oh one other thing, Chloe requested part time work instead of full time as a reasonable adjustment, but was told this wouldn't be allowed as no one in her office is part time so it would make her different to everyone else. The irony is two colleagues subsequently returned from maternity leave and had the right to go part time which they did - and Chloe put her request to work part time in again and was again turned down, with the reason given that "they only allowed the two new mums to work part time because the law says they have that right but you have no right to ask for that".

    Several months back we even tried helping Chloe's employer out by printing out a full copy of the equality act and highlighting relevant parts of it to Chloe's line manager, and talking her through her issues, but everything just seems to fall on deaf ears.

    I would be interested to know your thoughts on
    a) coping with a new disability mentally, support available, and
    b) what on earth do we do with Chloe's employer. The thing is Chloe loves her job, and is very passionate about it. It is just such a shame about their attitude and ignorance.
    c) is there any more support available from anywhere. We have never really seeked support anywhere other than from each other, the gov.uk website when we printed the equality act out, an hours advice from a solicitor, the GP and pain management, and tonight when I typed into google "disability support" which lead me to this forum.

    Any advice greatly appreciated, and apologies for the length of this and thank you for your time.

    Mark and Chloe

  2. #2
    The first half of my post went to be reviewed and didn't publish, but the second half did!! If it could be restored on here would be much appreciated.

    Mark

  3. #3
    Senior Member
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    Hi Mark and Chloe.

    The first part of your post will likely appear once the DLF team are at work later this morning.


    The second part of your post suggests numerous breaches of the Equality Act 2010 - a failure to provide reasonable adjustments, several forms of direct discrimination and victimisation. The problem is that there is a gap between the rights the law gives Chloe and the rights she can enforce against her employer. They have shown their unwillingness to follow the requirements of the Act and have been arrogant enough to put some directly discriminatory practices into writing, by refusing her company sick pay (which might also be a breach of her employment contract) and by stating that she will be disciplined for sickness absence unrelated to her disability (which, maybe contrary to their assumptions that the Act only protects disability, is less favourable treatment for reasons directly connected to her disability and therefore appears to be direct discrimination on the grounds of disability).

    It is clear that Chloe values her job and believes she can be an asset to her employer. Sadly, the employer is not seeing things that way. Their behaviour suggests they feel secure that they could show that what they perceive to be her deficient performance is beyond what is remediable with reasonable adjustments to physical features and working practices, which would entitle them to discipline her and ultimately terminate her employment notwithstanding her rights under the 2010 Act. What adjustments are reasonable is a balancing act between the legitimate needs of the business, the resources available and the employee's requirements.

    From what you say, I'm not sure the employer would be able to show the situation was unremediable with all reasonable adjustments in place. Their failure even to attempt any sort of adjustment suggests the employer has not given proper consideration to what adjustments are reasonable, let alone tried any adjustments in order to evaluate them properly. Those points that Chloe has in writing appear to break the requirement not to discriminate on the grounds of disability, which would therefore be prima facie evidence of a breach of the 2010 Act. However, if the employer terminates Chloe's employment, all these failures will do is give her grounds for an unfair dismissal claim at an Employment Tribunal if she has worked for them for a minimum of two years. If she has not worked for them for two years, she has no recourse to the Employment Tribunal on the grounds of unfair dismissal.



    There seems to be two ways of reading this situation. Either the employer is incredibly ignorant of and frightened about disability, or has made a decision they want rid of Chloe and accepts the risk of an adverse finding at an Employment Tribunal inherent in that decision (knowing that Chloe might not go to the Employment Tribunal, may not win at Tribunal, and even if she does win may well be awarded a relatively low sum of money). It is possible that the employer is giving off signs they want rid of Chloe not as a deliberate matter of discrimination but because they believe dealing with her disability is too much for them and they would rather have a non-disabled employee in her place.

    In my legal training, it was pointed out that companies often do what is cheapest, not what is morally and legally correct. If it's cheaper to break the law, that is what some companies will do. This, of course, is the worst case scenario, and whilst it is important to keep it in mind, it's primarily a case of thinking constructively about what can be done.



    What to do next is a matter of strategy. If Chloe cares enough about this job to try to save it, she's got to look for way to bring her employer on side. Two broad options seem to emerge - the rights based approach, and the cost/benefit approach. These are not mutually exclusive - it might be best to use different approaches for different parts of the problem. Both approaches offer some possibilities for breaking down the overall situation into a series of individual situations that might feel less threatening for the employer.


    The cost/benefit approach is to identify individual elements of the situation where a change will be of mutual benefit. Sometimes the problem with disability is that people perceive it as too big and too difficult to deal with - perhaps the employer feels that disability gives too many rights to the disabled person and offers them no benefit. For example, if Chloe can get occupational health to produce a costed proposal for a new chair, she can then see whether Access to Work would fund all or part of the cost. Once the chair is sorted out and hopefully makes a difference to Chloe's performance at work, the employer may well be more amenable to other adjustments.


    If Chloe wants to persist with a rights based approach, it might be that the intervention of some external experts will help, not least as this might make the situation constructive rather than confrontational. Chloe could contact the Equality Advice & Support Service to see what they suggest - she can do that without saying anything to her employer. If that fails, she could refer the situation to Acas' Early Conciliation service, which can be very beneficial, but could entrench positions further because that service is the gateway to bringing an Employment Tribunal claim.

    If Chloe is a trade union member, I would certainly be discussing the situation with the workplace representatives as well as the relevant national or regional office.



    My apologies that this is a very high level brain dump. I hope other forum members will come alone with some more practical advice. hopefully having had the opportunity to read the first part of your post.

  4. #4
    Senior Member nukecad's Avatar
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    Hi Mark & Chloe;

    I sympathise with your plight.

    I went through a similar situation myself, taken on as a regular employeer and later developed a medical condition.
    It was a fairly small company who already had disabled and infirm workers so at first all was fine, they knew that I would be taking more time off work and that when I had an epsiode I would not be able even to ring in sick.

    Then we got taken over by a large multi-national and things soon changed.
    I wont go into all the details but it was similar to what Chloe is going through, no more company sick pay, told not to make up for missed hours as their system meant they would have to pay it as overtime, reviews and agreed plans for getting back to 'normal' working, warnings when I couldnt stick to their plan, doctors notes not being procesed correctly so that I couldnt claim sick pay from the DWP, doctors notes being lost, etc,etc.
    Eventually it came to the point where I was told to get a doctors note for a month and stay off work for which they would pay sick pay.
    At the end of that month I was called into a meeting and told that my contract was being terminated that day for reasons of excesive absence.
    They did pay the three months notice period that I was entitled to under my contract, but took off that the previous months 'sick pay'.
    This was a clear breach of the rules on statuatory sick pay as it meant that for that month they should have given back the doctors note so that I could claim from the DWP.

    I did consider claiming for unfair dismisal, however as Flymo has pointed out, the leagal aspects of taking them to a tribunal are complicated and I decided that for the possible outcome it wasnt worth the stress.
    If I hadnt been ill at the time I would have done it just to show them that their behaviour was unacceptable and probably illegal.

    I know that the above is not of much help to you but give it so you know you are not alone with this sort of thing.

    What I can offer as perhaps a ray of hope is that once I was made to give up work the burden of stress that I had been feeling was greatly relieved.
    It is amazing the amount of stress this bad working situation puts you under, and you dont realise how bad it is until it stops.
    I would not have given up work of my own volition but it was probably the best thing for me at the time.
    Yes the reduction in income can be a struggle at first, and you also have a bit of stress coping with the DWP, but once you have got settled you should find that you can start getting your life back on track and possibly looking for a new position with a better employer.

    Hope all works out well for you whatever you decide.

    Steve

  5. #5
    Senior Member Lighttouch's Avatar
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    Ash your wife to self refer to Access to Work for an ergonomic assessment of her workstation. Once you have a written assessment then this should be sent to corporate HR.

    The company should not haggle with the report and will need to supply an ergonomic chair - it will help her become more productive.

    I see this time and time again. Managers should be asked to attend a Disability Awareness Training Course - in fact it should be made compulsory for new managers.

    Her manager should realise that your wife is entitled to 'disability leave' - it's probably known as 'special leave' to attend appointments in connection with her disability. This is important otherwise they may put time off as sick leave. In HR once you trigger off so many days sick leave they'll want a meeting to address the issues - even if you know what they are.

    Be careful that not too much time is taken off as sick leave in case the company downsizes as the first people to go will be the people with the worst sick leave.

    Be wary of taking things from work whether pencils, envelopes or post-it notes. The company is well aware it goes on. When the company wants to downsize it gives them the opportunity to sack people and pay no redundancy money - it happens.

    In fact, tell her to be careful on her intranet. Once a blond joke was circulated on our intrant. The people who forwarded this joke to other members of staff were dismissed - 15 people in total!

    Harassment and bullying - the best thing to do is infer HR that your wife thinks she is being harassed - they should take her out of that office and place her somewhere else as it's a big company.

    Your wife could also do with morale support from within. If she is in UNISON get her to contact them and ask to vent her feelings to the area rep. She needs to speak to other disabled staff - she isn't the only on. About 5% of the workforce will be disabled one way or another.

  6. #6
    Senior Member catlover's Avatar
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    The rules on disability leave are a bit vague I think. I looked into this recently as I have triggered health reviews due to having 9 days off sick in May with a throat infection and cough (suspected whooping cough). My manager asked someone in HR who apparently said there was no such thing. I asked another manager who found something on our intranet about it. Certain things like disability related appts could be categorised as disability leave rather than sick leave but are still included in triggering the health reviews (3 absences in a rolling 12 month period or more than 9 days in a 12 month period). My online search re disability leave seemed to imply it was something employers were encouraged to offer but were not obliged to. However, if I have a hospital appointment I can actually put into my flexi time as hospital appointment.

    I think that getting a proper workstation assessment is important. I don't know what Access to Work do but I got my Occupational Health dept to get someone in to do a proper, detailed assessment. A nurse came from a company my employer uses and spent about an hour with me asking all about my conditions, my pain, what medication I take etc. A report was then produced which said I was able to do my job with reasonable adjustments to my workstation. It went on to say what I needed in a chair (didn't recommend a particular chair but said I needed lumbar support, back support, headrest, arms etc. and my employer then sent the details through to the company they use to provide such equipment). I also got a footrest (I have short legs and once the chair was adjusted to my desk height existing foot rests were not high enough so I needed an adjustable one). It did take me several months to get the chair and there were many mix ups but it's made a huge difference. Getting the recommendations in writing is vital imo. Has Chloe had something like this?

    Getting her union involved is also a good idea if nothing seems to be happening.

  7. #7
    Senior Member Lighttouch's Avatar
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    To do with disability leave. Unfortunately what tends to happen is managers input data about attendance on a system that shows a few fieds like - sick, flexi leave, present and if you are lucky a field called 'special leave'. Many Managers are foxed by the system as they need to enter disability leave in a field marked 'special leave'. Inside the 'special leave field' is usually just one option - pregnancy leave!!

    Any time I took 'disability leave' I would be marked as having had 'pregnancy leave'.

    Another thing to notre is that it will need signing off as 'special leave' by an Assistant Director - they don't give it lightly!

    You're right Access to Work don't carry out the assessments they sub-contract the work out to companies like Posturite.

    Here's the chair I use today at home http://www.posturite.co.uk/ergonomic...ice-chair.html

    When I retired they allowed me to buy back my chair - cost me a £100!

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