Discrimination ?

sangie595

Andypandyboy wrote: »

See - Sickness Absence and Disability Discrimination TUC pdf Feb 2013 ( for some reason the link isn't working.

There is an option for the OP to ask if his employer would consider delininating his absences into two categories under the banner of reasonable adjustments.

If it is separated it may mean exactly that, as absence so designated cannot be used to deny promotion, etc, as per the Equality Act, so to include it in a reference which may result in a person not getting a job would probably be looked at the same way if it went to tribunal. There are similar cases in the examples given.

No, it wouldn't. Because if the potential employer asks for all absences, then the employer cannot lie - the ONLY excluded absence can be pregnancy related because that is protected in law. So they must answer truthfully or not at all - and not answering will raise even more questions. The employer is not discriminating because they are answering truthfully a question asked. And the potential employer isn't discriminating because the are simply asking for all recorded absences.

You are confusing an opinion about good practice with law (and it isn't everyone's opinion that it is good practice!). Sickness relating to disability is not protected in law. Whether it should be or not is a different matter.

FBaby

Yes - but pregnancy related sickness is excluded in law. Disability related sickness isn't.

The debate I think was whether 'depression resulting from a miscarriage' counted as pregnancy related sickness.

OP, are you totally certain that they withdrew their offer as a result of the sickness? At which stage did they receive your references? Could there have been something there that in addition to the sickness made them decide that they were not prepare to take the risk of hiring you?

How many days/event of sickness are we talking about?

sangie595

Andypandyboy wrote: »

I agree you are correct, but pregnancy is a choice, disability is not. Seems strange that the choice should be protected in law but not the one over which there is no control.

It depends on how you look at it. And to pin my banner - I have a disability. And I happen not to support disability leave, but do support adjustments to targets in relation to monitoring sickness absence for the purposes of capability proceedings.

There are only so many times that someone will be pregnant, choice or not. And only so much pregnancy related sickness. Disability related sickness, on the other hand, is a constant risk - disability continues indefinitely and may get worse. So the question becomes - what is reasonable. Should everyone with a disability get an extra months leave? How about two months? Three? And who is paying for all this sick leave? And who covers the work? Because whether it is caused by a disability or not, sickness absence has an impact on costs and productivity.

That should not mean that employers should simply dismiss everyone who is has time off sick. But it does raise the point - when is it reasonable to take capability procedures and when is it reasonable to dismiss? Why is it more reasonable to dismiss a non-disabled employee who has a bad year, than to dismiss a disabled employee who has a average (for them) year? Why does Joe get dismissed for two bouts of flu and then bronchitis, whilst Mary doesn't because she has the same amount of time off, but she has that amount of time off every year when Joe hasn't had a day off sick in the past twelve years? How is this fair? Or equal?

Some reasonable adjustment of sickness targets may be supportive for someone with a disability, but there has to be some form of limitation - otherwise we are not talking about equality, we are talking about better treatment. And one has to note that whilst the majority of employers don't give disability leave, the majority of those that do are actually public sector employers - the ones who are constantly knocked for wasting public money and being too lenient in their cushy jobs! I don't happen to agree with that latter opinion either, since I negotiate those "cushy conditions"! And that includes disability leave where local members want it. But still, few employers will agree (although all of them adjust sickness targets) - and the people who resist it most strongly are often our members with disabilities!

nathanjpj

why call me in to explain my sickness record? surely that is an opportunity to discuss extenuating, acceptable circumstances?

so what would be acceptable? if I had trauma from a car crash, but now I'm fine? if I was diagnosed with cancer, but now I'm recovered from successful surgery?

surely being diagnosed with and treated for a disability is no different? my health concerns are behind me.

so why withdraw the offer? if it was simply because of a poor sick record, they could have rejected me without a second interview. but they gave me a chance to explain. I did explain, in detail. my GP, psychiatrist and OH doctor can all confirm I am now being treated sucessfully. but unlike my examples above, they must be assuming, because I have a mental disability, that I will have continued health problems.

completely unfounded, and without medical advice.

so they must be discriminating based on my disability, because someone without a disability, who provided evidence that their problems are behind them, would likely still have been offered the job. they are assessing me as a risk. I assert I am not a risk.

I do not want to force my way into their workplace, but I want them forced to consider how what they have done discriminated on the difficulties arising using from my disability.

Takeaway_Addict

nathanjpj wrote: »

why call me in to explain my sickness record? surely that is an opportunity to discuss extenuating, acceptable circumstances?

so what would be acceptable? if I had trauma from a car crash, but now I'm fine? if I was diagnosed with cancer, but now I'm recovered from successful surgery?

surely being diagnosed with and treated for a disability is no different? my health concerns are behind me.

so why withdraw the offer? if it was simply because of a poor sick record, they could have rejected me without a second interview. but they gave me a chance to explain. I did explain, in detail. my GP, psychiatrist and OH doctor can all confirm I am now being treated sucessfully. but unlike my examples above, they must be assuming, because I have a mental disability, that I will have continued health problems.

completely unfounded, and without medical advice.

so they must be discriminating based on my disability, because someone without a disability, who provided evidence that their problems are behind them, would likely still have been offered the job. they are assessing me as a risk. I assert I am not a risk.

I do not want to force my way into their workplace, but I want them forced to consider how what they have done discriminated on the difficulties arising using from my disability.

Can you prove they have discriminated against you due to your disability, if so look at taking them to a tribunal if you can be bothered with the stress and hassle.

If you can't perhaps move on and keep concentrating on recovery.

nathanjpj

sangie595

please don't forget my disability has not caused any serious problems before. I always managed it fine.

last year my symptoms increased, aggravated by poor management, then I was diagnosed and now I am being treated. I explained this to the employer.

it is reasonable to assume my sickness levels will now return to "normal". I do not agree that all people with disabilities are an ongoing risk to employers, no more so than the "average Joe". each case needs to be considered individually. assuming disabled people are a risk is discrimination.

Andypandyboy

sangie595 wrote: »

It depends on how you look at it. And to pin my banner - I have a disability. And I happen not to support disability leave, but do support adjustments to targets in relation to monitoring sickness absence for the purposes of capability proceedings.

There are only so many times that someone will be pregnant, choice or not. And only so much pregnancy related sickness. Disability related sickness, on the other hand, is a constant risk - disability continues indefinitely and may get worse. So the question becomes - what is reasonable. Should everyone with a disability get an extra months leave? How about two months? Three? And who is paying for all this sick leave? And who covers the work? Because whether it is caused by a disability or not, sickness absence has an impact on costs and productivity.

That should not mean that employers should simply dismiss everyone who is has time off sick. But it does raise the point - when is it reasonable to take capability procedures and when is it reasonable to dismiss? Why is it more reasonable to dismiss a non-disabled employee who has a bad year, than to dismiss a disabled employee who has a average (for them) year? Why does Joe get dismissed for two bouts of flu and then bronchitis, whilst Mary doesn't because she has the same amount of time off, but she has that amount of time off every year when Joe hasn't had a day off sick in the past twelve years? How is this fair? Or equal?

Some reasonable adjustment of sickness targets may be supportive for someone with a disability, but there has to be some form of limitation - otherwise we are not talking about equality, we are talking about better treatment. And one has to note that whilst the majority of employers don't give disability leave, the majority of those that do are actually public sector employers - the ones who are constantly knocked for wasting public money and being too lenient in their cushy jobs! I don't happen to agree with that latter opinion either, since I negotiate those "cushy conditions"! And that includes disability leave where local members want it. But still, few employers will agree (although all of them adjust sickness targets) - and the people who resist it most strongly are often our members with disabilities!

Personally, ( and I don't have a disability but I do have children) I think that if you manage to work with a significant disability rather than claim benefits then you should be supported as far as is reasonably possible. Disability arising from pregnancy is often short lived so should not be treated more favourably in my opinion.

nathanjpj

that's what I've been doing - managing to be a productive worker despite my disability.

diagnosis and treatment are difficult, trying times, and its reasonable to expect a finite, managed abscence.

that's behind me, and I've returned to being a productive, contributing member of society. why is someone who didn't suffer illness last year more qualified to do the job than me?

sangie595

nathanjpj wrote: »

why call me in to explain my sickness record? surely that is an opportunity to discuss extenuating, acceptable circumstances?

so what would be acceptable? if I had trauma from a car crash, but now I'm fine? if I was diagnosed with cancer, but now I'm recovered from successful surgery?

surely being diagnosed with and treated for a disability is no different? my health concerns are behind me.

so why withdraw the offer? if it was simply because of a poor sick record, they could have rejected me without a second interview. but they gave me a chance to explain. I did explain, in detail. my GP, psychiatrist and OH doctor can all confirm I am now being treated sucessfully. but unlike my examples above, they must be assuming, because I have a mental disability, that I will have continued health problems.

completely unfounded, and without medical advice.

so they must be discriminating based on my disability, because someone without a disability, who provided evidence that their problems are behind them, would likely still have been offered the job. they are assessing me as a risk. I assert I am not a risk.

I do not want to force my way into their workplace, but I want them forced to consider how what they have done discriminated on the difficulties arising using from my disability.

Sorry - where did the "they must be assuming" come from. You have previously asserted that they specifically said this. So the fact is that you don't know this? You are assuming that they are assuming? And in fact the withdrawal of the offer could be based on something else entirely?

And you have not a shred of evidence to suggest that someone without a disability and with a significant amount of time of sick would be employed provided their problems were behind them. That is actually very unlikely. The fact is that someone without a disability probably wouldn't have been given a chance to explain. You don't seem to understand, but putting any discussion of disability aside, employers, perhaps unreasonably, want employees who turn up to work and that is what they expect to pay them for. This is the norm. This is what happens in the real world. People with a lot of sick leave don't get jobs and often don't get to keep the one they have. I am not saying that is right. I'm not making any judgement about that. It just is.

So if you want equality, then you have got it. But don't start complaining that you wouldn't have been treated like this if you didn't have a disability, because you most certainly would have been.

shortcrust

As a society I believe that we should support people with disabilities in employment, but I don't think the risks and costs of doing so should fall randomly on a small number of employers. I think it's incredibly unfair that an employer could be forced to employ someone with a poor attendance record.