Possible disability discrimination - what should I do?

Millysmammy

I'm sorry in advance if this isn't in the right place! I'm also sorry for the *very* long explanation of what's been happening at work, but here goes:

* Loss of personal details - I moved toa new address near work last year, when trying to contact me it came to light that the HR Manager had lost my changes form, including my address, email address and contact number. She did it again when I took time off ill (I am currently on a 4 week sick note on the doctors recommendation as my epilepsy has gotten worse due to the stress from work). She ended up calling my mum using details from my next of kin form, even though I had filled in a new details form just a couple of weeks ago.


*Had to undergo a tablet change due to side-effects from Epilim. Took a day off sick due to having a tonic clonic seizure at home.


*Filled in a return to work form once I was back to work (there were no problems and my manager was made aware of my condition and the increased risk of seizures during the tablet change).


*I then had a day off for hospital which I had booked off using my holidays in advance. The following day I was told that there was no longer a position for me in IT and that I had to move to returns, despite the job for IT being given to another person, who would have been just as suitable for the SRMA job without the serious health and safety implications. I was advised originally that it would be an admin role and I advised HR that the hours were not suitable, as at 7am I am still having high levels of absence seizures. This meeting had myself, the HR manager, the IT Director, the other Tier 1 IT Technician and the IT Manager in it. This was mentioned in front of all of them and the HR manager gave me her assurances that I would not lose any money and that they would fix the hours so I could work from 9am.


*Despite my contract saying that I should have a months notice to any changes this was done within a couple of hours and I was moved over straight away. I was told to sign a form confirming the change of departments and was told that it was so Payroll could keep on paying me.


*I was told by the Returns Manager, that no alterations in hours would be possible due to a lack of supervising staff on the shop floor. Despite repeated requests to both the Returns Manager and HR manager, I received no information on reasonable adjustments until 5 weeks after the original request, despite requesting this in the meeting, calling both of them, my then carer speaking to HR and sending them an email and myself sending them an email.


*The adjustments offered have been a reduction in working hours and pay to match. This I cannot afford and told them as much originally. I was also offered a position in Customer Support, which is a stressful role which I was not suited for when they last moved me into there. I ended up on an extended probation, which the HR manager is aware of as she organised it. Both roles result in a loss of earnings of around £2000. I have already lost £2000 in bonus which I got in IT and was not advised at any point that I would lose this. I have also been placed back on probation for the 5th time in two years as I have been moved around so much, for the first time I have been pushed backwards and they seem determined to do it again.


*I was booked in to see the occupational health nurse. this was never discussed with me I was given the appointment letter at the end of Friday and had to go on the Monday. She agreed with me that the role needed to be changed but signed me off ready to work as she was under the impression that the hours were being changed to suit my needs. I have never received a copy of her report, despite requesting it myself and having it requested by my carer.



*My carer then emailed the HR manager regarding this and other concerns and requested that I be cc'd in on any responses. She sent a two line answer advising that she would speak to me when I returned from my holiday (which I had taken due to a huge spike in seizures brought on by the changes at work), but at no point cc'd me in. I have previously explained to her that I want everything in writing and that if something involves me she needs to let me know.


*This came to a head when I called in ill due to stress and the fits caused by it. I was told by the Returns Manager that she hadn't expected me in til 9am for a meeting, rather than 7am, that she and the HR Manager had scheduled. At no point was either I or my carer advised of this meeting.


*I only got contact from the HR manager after that, it was one email regarding the Customer Support role and that was it. I received a letter three days after I put in my sick note telling me I had to call the Returns Manager every three days I was off sick.


*I am susceptible to seizures, confusion and a loss of awareness and it is worst on mornings and late evenings. Working on a 3rd floor balcony with concrete floors, no lift access and with forklift trucks on the ground floor is generally a bad idea. As is leaving me near dangerous heavy machinery and a gap in the railings near my desk which has a swing lift for the bins in it. I raised these issues but have heard nothing.


*I had to be half-carried down the 3 flights of stairs by the Returns manager after I had a Complex Partial seizure, which I very rarely have. This was the day after I cried my eyes out in her office due to lack of training (I have had very little for the role I am doing) and general stress, as well as bullying by another member of staff who thinks I am there to take his job (there isn't enought work for two people in this role). I then had time off to try and recover, this used my holidays, which I had pre-booked.


*I am actually testing motherboards on the shop floor, rather than the admin job HR billed it as. There's been a marked increase in my seizures since the job change resulting in my medication dose being raised.


*Health and Safety has been ignored in regards to my well-being and the well-being of those around me. The company is compounding this by keeping trucks and vans inside the warehouse despite the companies own HS Officer telling them to move them.


*The HR manager has claimed to the Returns Manager that she was not aware of my condition. This is not the case. As well as having marked on several of my holiday forms that they were needed for hospital appointments, and having had to take sick days previously due to it, she also should have on record from when I joined not only that I was epileptic but also the exact type of epilepsy. The information was requested for both company records and for the health care scheme we used to have with Westfield Health. She also advised the Returns Manager that she was not aware of my epilepsy after I had handed the previous sicknote in to her myself. It says epilepsy on it. I also had previously gone into the HR office and requested a letter for my doctor saying that my epilepsy was under control at work. This letter never materialised despite being requested in January.



Due to all of the above, I believe that they are purposely attempting to make my worklife untenable either due to my epilepsy or because they are using that as an excuse or catalyst, in an attempt to force me out or discriminate against me. My own doctor has advised me to contact ACAs due to his concerns regarding all of this, but their advice was to either take one of the options, which isn't suitable, or to leave.



I've kept email and letter correspondance from work and from the Active Communities charity who helped me get my dla (after 17 years of trying on my own, no backdating though), just in case.

Any advice is gratefully received - I have no money, no way of fighting them and they won't let me leave without working my notice, but I just can't stomach going back after all of this. Problem is, I still want to work and I still want to do something with myself. Although my dad is supportive, my mother thinks I should just walk, due to the stress being placed on my condition, but if I do that I get no reference, no redundancy payment, nothing to survive on but I don't think she realises how important it is to me to get this dealt with properly and to make sure they can't do it again.

Please let me know what you think, and feel free to message me with any questions or suggestions also.

Thank you,

Millysmammy (can't put my real name on, they scan forums for staff)

Millysmammy

Oh, this just came through from the customer service desk of right solicitor (other freebie advice places are available I think):

Dear ****

Thank you for your question.

If you suffer from epilepsy it is likely you are protected from disability discrimination under the Equality Act. This protects you from unfavourable treatment due to your condition and also places an obligation on your employer to make 'reasonable adjustments' to allow for your condition. From the information you have provided it appears that your employer has breached their duties and this would entitle you to make a claim to an Employment Tribunal for disability discrimination. This should be a last resort and before you do so you should make every attempt to try to resolve the matter with your employer. You could consider raising a formal grievance about how these issues have been dealt with.

In addition it appears your employer has breached your contract be not giving you sufficient notice of the move and they have also breached their health and safety obligations.

Be aware that if you want to make a claim to an Employment Tribunal you must do so within 3 months. You can get further advice and information from ACAS (Advisory, Conciliation and Arbitration Service). Unfortunately legal aid is not available for Employment Tribunal claims but some solicitors may be willing to do this on a 'no win no fee' basis.



Not sure if that helps any, really?

Millysmammy

KiKi

Hi OP

I haven't read your whole post, and it's not my area of specialism. All I would say is that they do not HAVE to make adjustments for you. They are required to consider adjustments and implement them if they are reasonable - but what you and they see as reasonable may be different. It may be in some organisations that the adjustment or the cost is not reasonable, and cannot be accommodated. Adjustments may also be in the form of reduced hours etc.

Proving discrimination can be very tough; being 'mean' or not telling you about a meeting isn't proof that it's because of your disability.

Please exercise CAUTION (in big letters) when talking to ACAS. They are not legally trained, and they do not know case law, and they are not legal advisors. Their advice (as we've seen on here time and time again) is often wrong - not their fault, but it's because they have info on the basics, but not necessarily the complexities of any case.

You are much better off paying for legal advice, and perhaps first taking advice here from someone like Jarndyce or LazyDaisy on whether or not you'd have a case.

HTH
KiKi

Googlewhacker

Am sure better people will be along but from reading your side of the story it seems that the company have tried to help you in several ways but you have deemed them all unsuitable so they would be able to show if it went to a tribunal that they were trying to make an effort with you.

The company do not have to make a new role for your but as you are aware they need to make reasonable adjustments for your disability, this can be for example more sick days than normal before their disciplinary procedures kick in or moving from full time to part time work.

If the company really wanted to get rid of you then they would snap your hand of of leaving without notice, the fact that you are saying they want you to work notice makes me feel that they are trying to help again and that there is more to this than you are letting on.

I am sure the company have not been perfect though...

If the solicitor says you have a case then I would suggest looking to see if you legal aid on your home insurance (if you have it) and from what I can gather you are not a member of a union (who would have helped)

Millysmammy

Thanks so far guys, basically:

*They have breached my contract by refusing to make reasonable adjustments, they are simply offering me work which they know from past experience I am unable to do.

*I am willing to work - not for them in a dangerous or unsuitable role. I don't want to work my notice - they intend to force me to and will not give me a reference regardless. I've had seven different positions with them and have consistently hit my targets (kept proof of that too). I've done unpaid overtime to help when they struggled and they're not a small company - over 500 employees and over 21 mill in profit from one side of the business alone last year.

*They've broken Health and Safety regulations - I thought that was a criminal offence but I might be wrong (I'm not a lawyer either lol).

*Thanks so much for the advice in regards to ACAs, KiKi, I thought they'd be alright, they're a big government approved body, so it didn't cross my mind to take their advice with a pinch of salt.

*I wish I could pay for legal advice, but I have nothing, not even a home at the moment, due to the stress and costs of working, so I really can't afford legal help and as I don't have a home (dossing at my mums (she's a lifesaver)) I also can't claim any legal aid - no home insurance.

*They won't make me redundant, and won't let me do anything other than walk out and lose everything or work my notice and still come away with nothing.

*I do also find it surprising that it took 5 weeks for them to offer anything in regards to reasonable adjustments. If they're unable to do this, then they could easily make me redundant - a company only has to try to make the adjustments if it physically or financially cannot then you can apparently be made redundant as you can no longer do the work.

*All in all, it seems quite confusing.

MrSnuggles

If you walk out you'll be unemployable for breaching the contract, not giving notice to leave. Employer has no obligation to provide a reference even if you serve your notice. A reference is a personal favor...

I agree with the other user. Maybe they've tried to make adjustments but are unable to do so.

Millysmammy

@MrSnuggles - exactly what I want to avoid, thank you for your advice!

Despite how it sounds, I don't hate the company and I love the people there (I've been sending sweets in for each Friday I've been gone). I don't hold them any ill will, I just feel concerned that this may have been triggered by my seizure as the timing just feels suspect and I don't want them to continue breaching peoples contracts or having an employee handbook that may not fall within the law. It would be awful for everyone, not just the employees but also the company and the economy of a very poor area that it helps to hold up.

I've asked them, in writing to look into these problems, including the health and safety breaches, and to see if there was anything they could offer me which wouldn't result in me continuing to work in a dangerous environment or a job which I am terrible at (I openly admit that Customer Support is a job I'm poor at when on the phone and they agree). They have not responded to any of my concerns, only sent me the Customer Support role information or offered to lower my working hours without dealing with the health and safety aspect.

KiKi

Millysmammy wrote: »

Thanks so far guys, basically:

*They have breached my contract by refusing to make reasonable adjustments, they are simply offering me work which they know from past experience I am unable to do.

That's not a breach of contract. Unless your contract specifically says "we will always make adjustments for disability, regardless of whether or not they are reasonable".

They are allowed to refuse adjustments on the basis that they are not reasonable for the company - which may be different to what you see as reasonable. This is not a breach of contract.

*I am willing to work - not for them in a dangerous or unsuitable role. I don't want to work my notice - they intend to force me to and will not give me a reference regardless. I've had seven different positions with them and have consistently hit my targets (kept proof of that too). I've done unpaid overtime to help when they struggled and they're not a small company - over 500 employees and over 21 mill in profit from one side of the business alone last year.

That's great, but it doesn't demonstrate disability discrimination.

*They've broken Health and Safety regulations - I thought that was a criminal offence but I might be wrong (I'm not a lawyer either lol).

This is a separate issue and should be taken up as a H&S issue through whatever procedures you have for this.

*Thanks so much for the advice in regards to ACAs, KiKi, I thought they'd be alright, they're a big government approved body, so it didn't cross my mind to take their advice with a pinch of salt.

I'm not saying don't talk to them - but just be aware that time and time again we see people on here having been told info from ACAS which is wrong, and they've taken action on that basis, and ended up looking very silly, or not gotten what they should have had as the outcome. When you call through you speak to a call centre which is staffed by employees who are not legally trained.

There is also a mediation centre which is very professional indeed and legally trained, but the call centre *you* would speak to to get advice is not the same. You may get someone who knows what they're talking about, but never, ever take it as gospel!!

*I wish I could pay for legal advice, but I have nothing, not even a home at the moment, due to the stress and costs of working

I know it's not relevant, but what do you mean when you say you don't have a home due to the stress and costs of working?

*They won't make me redundant, and won't let me do anything other than walk out and lose everything or work my notice and still come away with nothing.

What is their reasoning for no longer having a job in IT for you? If the job no longer exists then it is potentially a redundancy, but if they offer alternative work then it has to be considered.

*I do also find it surprising that it took 5 weeks for them to offer anything in regards to reasonable adjustments. If they're unable to do this, then they could easily make me redundant - a company only has to try to make the adjustments if it physically or financially cannot then you can apparently be made redundant as you can no longer do the work.

No, this is not true. A person isn't made redundant - a job is. So if your job still exists, then you can't be made redundant. If they cannot employ you by making adjustments, then they would usually dismiss on medical grounds. Redundancy is not about your ability to do the job, it's about whether or not the work actually exists in the first place.

*All in all, it seems quite confusing.

It is confusing. I would suggest you take some time to look at your options, talk further with the company (do you have an HR department to talk to?) and look at what options are possible. You may need to compromise on some things but, of course, if you are not able to do any of the roles for medical reasons (and you shouldn't compromise on your own health or safety) and if they cannot offer anything else, then they may have to consider dismissal on medical grounds. But it shouldn't be you resigning - don't do that. Let them sort out the problem as far as they can, and work with them as much as you can to do this.

Are you in a union?

KiKi

Millysmammy

Thanks KiKi - we have an HR department who were dealing with this - but it took 5 weeks before I heard anything from them. We don't have a union at work and they refuse to accept one, it's apparently pretty typical of internet based companies so I don't really know if that is of any use.

According to direct.gov you can be made redundant under incapability grounds - this is a redundancy and is essentially the same as retired on medical grounds, from what you and they seem to be saying.

I feel like they've had plenty of time to do something - over a month before I got ill and had to take time off, and I've even offered them the chance to just let me go, which they haven't taken. That surprised me as there clearly isn't a need for me in the job, I'm wondering if they're worried about the backlash.? I don't actually mind going now, but walking away would be such a waste.

In answer to your other question:

I moved down South for this job, well, to work in a totally different department at a better wage actually. I dealt with queries regarding products to start with and gave up living at home and that security for this job, which was fine. Because I was renting that took a large portion of my wage, the landlord also insisted that someone come in for the dog (I got her long before I got the job) so that took up almost the rest of my money.

Just after I passed my probation period the department I was in was disbanded. After 4 weeks of trying to find another job within the company (travelling is difficult for everyone at the moment and as I can't drive I live by the bus timetable) I ended up persuading them to give me any job - I even offered to clean. I ended up in customer support on another three month probationary period. I didn't put enough notes on the orders when customers called so I got a disciplinary for that, which is fair enough, but then I got my probation extended for another three months on top of that for putting too many notes on. Probation = lower pay and no bonus or holiday structure unfortunately.

After a year of abusive customers I managed to get into Technical Support, which I did for 2 1/2 months whilst also helping out the customer support side of the other part of the business and training the order hotline people who had taken over my original role. This entire period I was on probation and making the same as the cleaners despite working 40-50 hours a week. My finances crashed and I had to share a place with my carer as I couldn't afford to live on my own anymore, I also ended up in debt.

Before Tech probation was finished I was poached by IT to help with the setup and maintenance of the warehouses, staff machines and stores and to run their admin. This meant my wage went up to 16000 before tax which has helped me clear my debt at least (along with selling a load of stuff).

Passed the three month probation without any problems and then one month after that I had my fit, got moved, lost wages, bonus and an environment I could work in safely. Started having alot more fits due to this, had a slight breakdown and am currently living out of a box in my Mums' spare room.

Things could be alot worse though, I decided to at least try and do something about it, and I have a roof over my head even though it is borrowed! Plus, Mum has a lovely kitchen so I can least bake without worrying about my exploding cakes blinding anyone (I am not kidding about the exploding).

Sorry for the potted life history, but well, that's what happened. It's nothing major and I'm sure it'll work out fine - I just really wish they'd make me redundant/medically retired/a fish.

Thank you for letting me blow off a bit of steam though, it made me feel a lot better being able to get it off my chest.

unsure

It may be worth getting in touch with your local disability support and advocacy group (of which there are many around the country). Also the jobcentre should have a Disability Officer who's job is help disabled people into work and to keep them there. They may be in a position to advise you and to discourage your employer from acting in a way which may amount to disability discrimination. There is also the Citizens Advice Bureau to consider. None of those options should cost you anything.

KiKi

Millysmammy wrote: »

Thanks KiKi - we have an HR department who were dealing with this - but it took 5 weeks before I heard anything from them. We don't have a union at work and they refuse to accept one, it's apparently pretty typical of internet based companies so I don't really know if that is of any use.

Just because you're company doesn't recognise one it doesn't mean you can't be part of one.

TU recognition relates to formal negotiations and consultation with an organisation. But anyone can be part of a TU, and use them to help with work problems, and use them as representation in disciplinaries etc.

However, as you're not part of one this is a moot point anyway!

According to direct.gov you can be made redundant under incapability grounds - this is a redundancy and is essentially the same as retired on medical grounds, from what you and they seem to be saying.

Where do they say this, please? Can you post a link?

I feel like they've had plenty of time to do something - over a month before I got ill and had to take time off, and I've even offered them the chance to just let me go, which they haven't taken.

They can't just let you go - that would be unfair dismissal because you've been there for over a year. They have an obligation to manage this situation, and can only dismiss you fairly - which would either be redundancy (if your job doesn't exist anymore) or capability (for medical reasons) if they can't make reasonable adjustments.

Probation = lower pay and no bonus or holiday structure unfortunately.

I hope you're not telling me that you are not entitled to your 28 days' paid leave in any year where you have a probationary period?

You mean that you just weren't allowed to take leave during that time, right? Not that you were denied your full year's holiday in that year?


Sorry to hear about all the problems you're having, though. I really would continue to demand that they make your options clear, and discuss them in detail with them, and propose changes that would work for you (and them) and be proactive in doing it. You could always try and go to ET if they do dismiss you, but proving discrimination is very difficult, and you need good evidence (so collate it NOW if that's what you plan to do) - and be prepared for any ET to be a very stressful process, which sounds like it won't be good for your health right now.

They sound like a difficult organisation to work for anyway, and not well paid, so you may be better off starting to look for other work for your own sanity!

KiKi