Epileptic daughter sacked

stevemLS

repeatoffender wrote: »

I think you should seek informed advice regards the equality act. When your daughter declared her disability her employer has a duty to carry out a risk assessment which would include the work she can do and also the process for notifying her employer if she is ill. The employer may not have considered this and an assessment could have ensured that she had a plan for her employer to be notified of any absence.

For my own education, from where are you deriving a specific duty to conduct a risk assessment, I can't see anything in the Act.

repeatoffender

stevemLS
The Equality Act puts an employer under a duty to make reasonable adjustments.

How could they do this without a risk assessment?

HSE - Employers are required to carry out risk assessments and the assessment must include additional risks which may arise from a disability. It must focus on the individual and not others with the same disability or condition, it must consider facts and medical evidence and address reasonable adjustments.

madmuvva

repeatoffender wrote: »

Whether her employer thinks she was trying it on or not there is still a proper process. The risk assessment would establish her type of seizures and how well they are controlled. You can not say that epileptic A always contacts work on time therefore epileptic B has to.
Personal opinion does not override H&S or the equality act..

Thank you! This is really what my original question was.....basically does she have any redress or not?

Your daughter also has responsibility and when she was informed of the absence from work procedure she should have considered how work would be notified should she be incapable herself. .

Completely agree. Its a tough one though and as this is the only time she has failed to turn up, one would assume it would be reasonable to agree not to take sleeping meds again. An analogy would be if someone were involved in an accident and in hospital or even caught the flu (proper flu); when you live alone and are unable to get to the phone, is it reasonable to be sacked in such extenuating circumstances? These are extenuating by virtue of the fact she took sleeping pills.

There is a common link between sleep and epilespy and taking sleeping medication on top of seizure medication could have contributed to her recovery time. However two and a half days is a long recovery period by anyone's standards that would be very concerning.

Very. I see another neuro trip on the cards, although She regularly has seizures in her sleep, I suspect taking sleeping pills was contributory to the recovery time on this occasion.

Another_not_new_user

I am afraid that, as StevemLS has suggested, things are not as simple as tou have been told. The employer has NO duty under the Equality Act or Health and Safety legislation to conduct a risk assessment simply because someone has a disability. This is only a reasonable adjustment if the employee feels they need an adjustment. If your daughter didn't ask for one, the employer is not obliged to provide one. We may think it would be sensible, but that is our opinion - not the law. And besides which, this circumstance would never be covered by a risk assessment - what happens to your in your own home is not their responsibility. But it is an employees responsibility to contact the employer if sick.

madmuvva wrote: »

Thank you! This is really what my original question was.....basically does she have any redress or not? It is highly unlikely that she does. She would not be able to make a claim for unfair dismissal except as a result of disability discrimination, and there is no eveidence that she has been treated any differently than her colleagues in this respect - if they don't turn up for work and don't notify work then I would expect that dismissal would be the outcome. A disability doesn't give you the right to be treated better than everyone else.



Completely agree. Its a tough one though and as this is the only time she has failed to turn up, one would assume it would be reasonable to agree not to take sleeping meds again. An analogy would be if someone were involved in an accident and in hospital or even caught the flu (proper flu); when you live alone and are unable to get to the phone, is it reasonable to be sacked in such extenuating circumstances? These are extenuating by virtue of the fact she took sleeping pills.

Is it reasonable - that's a matter of opinion and not relevant. Is it legal - yes! It doesn't matter if someone has flu, lives on their own and can't get to a phone - it's exactly the same situation and they would expect to be tretaed the same way as someone else. Even after two year employment, "extenuating circumstances" or "mitigation" does not have to be accepted by the employer - they law doesn't require them to do anything other than hear it. They may then ignore it.

Very. I see another neuro trip on the cards, although She regularly has seizures in her sleep, I suspect taking sleeping pills was contributory to the recovery time on this occasion.

The chances of her demonstrating legal unfairness are exceptionally thin, and it will be at least £1250 to do so anyway - that is the basic cost of a tribunal hearing of this type, before any legal fees or other costs. Realistically this is not a good investment for what is likley to be no return.

There is far more likley, if she has a good record, to be a positive response if she attempts to persuade and negotiate now that the moment has passed and tempers are likely to be more settled.

madmuvva

Another_not_new_user wrote: »

I am afraid that, as StevemLS has suggested, things are not as simple as tou have been told. The employer has NO duty under the Equality Act or Health and Safety legislation to conduct a risk assessment simply because someone has a disability. This is only a reasonable adjustment if the employee feels they need an adjustment. If your daughter didn't ask for one, the employer is not obliged to provide one. We may think it would be sensible, but that is our opinion - not the law. And besides which, this circumstance would never be covered by a risk assessment - what happens to your in your own home is not their responsibility. But it is an employees responsibility to contact the employer if sick.

The chances of her demonstrating legal unfairness are exceptionally thin, and it will be at least £1250 to do so anyway - that is the basic cost of a tribunal hearing of this type, before any legal fees or other costs. Realistically this is not a good investment for what is likley to be no return.

There is far more likley, if she has a good record, to be a positive response if she attempts to persuade and negotiate now that the moment has passed and tempers are likely to be more settled.

Thank you for taking the time to reply. This is the kind of measured, informative, legally-based answer I was looking for, even if it wasn't what she was hoping to hear. I will tell her.

repeatoffender

Another not a new user is an employment specialist - I am not and I do not profess to offer employment advice. Which is why my first post started with I think you should get some informed advice. I was posting from the epilepsy / disability / risk assessment angle.

On a personal level I have successfully challenged three large employers over this issue. The first two were decided at tribunal -the third one offered the job back before tribunal - all were on the fact that the employer had failed to carry out a risk assessment on the person with epilepsy, the effects of the epilepsy - including the effects of medication and recovery.

An employer may have no duty under law simply because a person has a disability and many employees don't ask for an assessment as they are afraid that the employer will use it as a way to dismiss them. The employer has a duty to carry out a risk assessment in his workplace, this is specific when employing young people, pregnant or breast feeding women and extends to disability.

All three companies that we challenged told me that I was wrong and all three employers were found to have failed to comply with the HSE regulations.

I do not make a habit of agitating employers but epilepsy can be so much more than someone throwing some moves around the office, losing consciousness, having a nap and sitting back at their desk. :cool:

When it comes down to the minutia no advice is full and informed until the adviser has possession of all of the facts and can that ever happen on a forum? I did not suggest that your daughter submit a case - the cost is prohibitive in this instance - but said it could be used as a lever in negotiations to get her job back.

Hope your daughter is recovering well and receiving the treatment that she needs.

madmuvva

repeatoffender wrote: »

Another not a new user is an employment specialist - I am not and I do not profess to offer employment advice. Which is why my first post started with I think you should get some informed advice. I was posting from the epilepsy / disability / risk assessment angle.

On a personal level I have successfully challenged three large employers over this issue. The first two were decided at tribunal -the third one offered the job back before tribunal - all were on the fact that the employer had failed to carry out a risk assessment on the person with epilepsy, the effects of the epilepsy - including the effects of medication and recovery.

An employer may have no duty under law simply because a person has a disability and many employees don't ask for an assessment as they are afraid that the employer will use it as a way to dismiss them. The employer has a duty to carry out a risk assessment in his workplace, this is specific when employing young people, pregnant or breast feeding women and extends to disability.

All three companies that we challenged told me that I was wrong and all three employers were found to have failed to comply with the HSE regulations.

I do not make a habit of agitating employers but epilepsy can be so much more than someone throwing some moves around the office, losing consciousness, having a nap and sitting back at their desk. :cool:

When it comes down to the minutia no advice is full and informed until the adviser has possession of all of the facts and can that ever happen on a forum? I did not suggest that your daughter submit a case - the cost is prohibitive in this instance - but said it could be used as a lever in negotiations to get her job back.

Hope your daughter is recovering well and receiving the treatment that she needs.

I found all your responses really helpful and balanced and thank you. Epilepsy is a very complicated condition and whilst I was seething at some of the things I read on here, your clear understanding calmed me down enough for me not to respond. People die from epilepsy. Probably too many to warrant it being reported in the press. So once again, thank you for your empathy at the bigger picture, that was just as important in this instance as the employment advice.

makeyourdaddyproud

Lioness_Twinkletoes wrote: »

I have to say from an outsiders POV it does look like she's trying it on. Sounds like she 'got on it' all over the weekend and is blaming her condition.

I work with someone who has epilepsy and she has never failed to contact work when ill. Never. And she lives alone.

If she has registered epilepsy than I think she has a protected disability, and thus the employer could be in trouble if she sues.

Restaurants don't offer much of a time window if someone is unable to come in, barely a few hours into your shift where they are not able to mitigate on staff then unfortunately the writing is already on the wall - contacting your employer 4 hours into an 7 hour shift is already too late. Contacting them at that point would simply be taking the p1ss.

I certainly don't think anyone is 'trying it on'.