Equality act, absence and discrimination…

corleone9

Hi, just need some advice on the following. Employer is a large company (will name in the future after the outcome). Got diagnosed with arthritis in 2007, occupational health consultant informed the company the condition comes under the DDA. Whenever I have had time off in the last few years my managers have acknowledged this condition and have been told they manage it separately and have helped me with phased returns, reduced hours etc. No issues raised.
Last year I was off with the condition for 1 week in January. Which resulted in me having knee surgery in October, when I went back to work after the surgery at my return to work I explained this to my new manager and that my recovery would be slow due to the underlying health condition that I have.
I was told by my manager that because my absence was above 5% over the 52 week period that a disciplinary hearing would be held to decide the appropriate action. At the hearing this week, the manager got out print outs of the last 11 years of my absence and asked me to put myself in his shoes and comment on the absence, I said to him that I can’t because it brings back bad memories and that I was off due to the arthritis. Then he said that this information would not be used in this hearing but will in the future, if my absence does not improve.
He asked me for my opinion I explained to him that I was off due to a condition that comes under the equality act and that he should manage it separately.
He gave me a 6 month warning. Just wanted some advice, as I believe he has discriminated against me due to my disability (I know the word discriminate is used a lot these days but I really believe I am). And also I just don’t understand why he brought up my past absence, considering that has been managed at the time by my managers at the time. So he also has discriminated against me there too. And the finally the thing is if I be off with this condition again he will take the disciplinary action to next level. I thought he would have understood that with this condition I will have flare ups.
Thanks for any help.

jacques_chirac

The EqAct requires that reasonable adjustments be made, which may include making allowances for absence due to disability. Some organisations will entirely disregard this absence, but they are not obliged to do so, they are just required to be more flexible.

What is classed as reasonable is ultimately up to a tribunal to decide. How long have you had off in the past year?

corleone9

jacques_chirac wrote: »

The EqAct requires that reasonable adjustments be made, which may include making allowances for absence due to disability. Some organisations will entirely disregard this absence, but they are not obliged to do so, they are just required to be more flexible.

What is classed as reasonable is ultimately up to a tribunal to decide. How long have you had off in the past year?

I cant remember the exact figures but from the top of my head..
4 months 2007, 3 months 2008, 2 months 2009, 3 weeks 2011, 1 week jan 2013 and also 2 months oct, nov 2013. At all times have been visting occupational health and they have also advised me at times to not return to work during these periods.

jacques_chirac

Your absence for the past 52 weeks is over 15%, so it seems they have relaxed the 5% trigger in this instance. In my opinion that is reasonable, having a disability does not exempt you from the disciplinary process altogether.

corleone9

jacques_chirac wrote: »

Your absence for the past 52 weeks is over 15%, so it seems they have relaxed the 5% trigger in this instance. In my opinion that is reasonable, having a disability does not exempt you from the disciplinary process altogether.

Thanks for the input. What I have come across the net is



"Absence from work due to a disability should be treated differently and distinctly to regular sickness absence, and have a separate agreed policy relating to it. It should protect disabled employees from any discrimination related to absence caused by a disability that would otherwise be treated as sickness absence. Without a separate policy on disability leave a disabled person may experience disability-related discrimination in a number of ways, e.g."


Will be onto acas on Monday, and Union legal team.

jacques_chirac

corleone9 wrote: »

Thanks for the input. What I have come across the net is



"Absence from work due to a disability should be treated differently and distinctly to regular sickness absence, and have a separate agreed policy relating to it. It should protect disabled employees from any discrimination related to absence caused by a disability that would otherwise be treated as sickness absence. Without a separate policy on disability leave a disabled person may experience disability-related discrimination in a number of ways, e.g."


Will be onto acas on Monday, and Union legal team.

Your absence has been treated differently. You cannot expect them to allow such high levels to go on forever, that is not reasonable. Anyone else would have been disciplined years ago.

Please think carefully before playing the disability card without good reason. It makes it all the more difficult for everyone with a disability to get on in work.

corleone9

jacques_chirac wrote: »

Your absence has been treated differently. You cannot expect them to allow such high levels to go on forever, that is not reasonable. Anyone else would have been disciplined years ago.

Please think carefully before playing the disability card without good reason. It makes it all the more difficult for everyone with a disability to get on in work.

I will post back the outcome and then if you were right I will apologise for playing the disability card.

jacques_chirac

corleone9 wrote: »

I will post back the outcome after the tibunal and then if you were right I will apologise for playing the disability card.

You are going to go to tribunal over a single warning? Good luck with that one!

marybelle01

corleone9 wrote: »

I will post back the outcome and then if you were right I will apologise for playing the disability card.

So, since the 15th of December last year you have returned to work, received a warning for too much sickness absence, exhausted the grievance procedure in relation to your complaints, celebrated Christmas and New Year, and managed to file a tribunal claim? Wow, you must have been busy.

ohreally

corleone9 wrote: »

Will be onto acas on Monday, and Union legal team.

Contact your local steward and ask for a meet-up to discuss the state of play over a coffee.

FBaby

How many days off a year do you consider acceptable taking your disability into account then? Surely even with a disability, there has to be cut-off point of what is reasonable?