Discrimination questions - health
Our discrimination expert, Richard Leong, answers readers' questions about discrimination and health issues. Read on to find out what problems other readers have experienced and why they don't have to put up with it.
I feel really pressured to return to work
I have been off sick with severe depression since mid January. Problems like attempted suicide, suicidal thoughts and sleep problems. I have received a call from my local Human Resources manager telling me to ask my GP about a part time return to work, also telling me they need me. I feel really pressured by this, I'm finding it hard to cope as it is. Can they do this?
I am sorry to hear about your depression and the situation at work, of course, does not help.
It appears as though your employer is pressuring you to return to work, even though it is on a part time basis. Can they do this? The answer is that no one can force you to return to work against your will, but of course there is always the risk of losing your job for long term absence.
So long as you are covered by sick notes, any short term absence should not be of concern. I presume that you are keeping your employer regularly informed about your medical condition and the likelihood of returning to work. But your absence is now becoming long term - and this could be of concern.
Your employer has a legal duty to make 'reasonable adjustments' for a disabled employee (I am assuming that the severity of your depression classifies you as a disabled person), including an agreed programme to return you to work. Such a programme should consist of a medical report to give advice on the likelihood of returning to work and measures to assist you in doing so. The company should also have regular welfare meetings with you, possibly at your home, if this suits you better than at the company office. Returning on a part time basis could be a reasonable adjustment, but only if your doctor recommends it. Is it possible for you to work from home, with a laptop and mobile phone?
The law in such situations balances your rights as a disabled employee and the employer’s interest in running an efficient business. But clearly it would be wrong for your employer to force you to return to work when you are medically unfit to do so. But your continued absence is a worry in that long term absence can be a fair reason for dismissal.
My advice is to go to your GP and get a medical report to find out whether you are fit to return, and if so, recommendations for a phased return. Keep your employer regularly informed about your medical condition.
The risk however is that any medical report might say that you cannot return to work for the foreseeable future, and this might prompt your employer into taking disciplinary and dismissal proceedings. Any dismissal decision should take the following relevant factors into consideration: your length of service, the length of absence, the nature of your medical condition, any reasonable adjustments, are you a key worker, can someone else cover for you, your previous sickness record, any medical advice, and most importantly, your likely return date. If this happens to you get advice straight away.
Check how other employees have been treated in such situations. What does your company sickness policy say about long term absence?
It is important that you cooperate with your employer in their attempts to return you to work, particularly when giving consent to the release of your medical records, seeing the company doctor and attending welfare meetings. Your employer should treat you with sympathy and understanding and make reasonable adjustments to allow you to return to work (including giving you more time to recover). Dismissal should be a last resort, after exhausting all other alternatives. Your employer could be seen to be acting reasonably, in trying to return you to work with medical advice. An unreasonable employer would more likely go straight to dismissal or just leave you on sick leave permanently, without paying you any wages.
I am sorry that this advice is not more positive - your situation is one where there is no clear solution. But remember that no one can force you back to work if you are not fit to go. Good luck.
Suspended on medical grounds
Please can you help me. I have worked for the NHS for just over two years. I have worked in my present job for over 12 months. When I was interviewed for the job I told them that I had a medical condition that was then stable. I was sent for a medical and then offered the job.
Due to stress at work about six months ago my health started deteriorating again. I have HSP chronic kidney disease. I have been to occupational health about six times when my manager requested me be seen by one of their own doctors. Once again I returned to occupational health to see the doctor who confirmed I was covered by the Disability Discrimination Act at work. He could see that I had not been driving for the past three months due to dizzy spells from my medication and high and low blood pressure.
I explained that I was working more late shifts than other members of my team and I was feeling really tired by three o’clock in the afternoons. They were constantly putting me on 9 till 5 or 10 till 7. The doctor wrote to my employers stating my condition and deterioration on my kidney functions, and for me to work the early shifts of 8 till 4.
When my manager got the letter she then stated that there were no longer going to be 8 till 4 shifts that I rarely worked anyway. And therefore put me on 9 till 5 and 9 till 6. I contacted Human Resources who spoke to my line manager to put me on all 9 till 5. This again did not happen and I was put on one week 9 till 5, one week 9 till 6.
I continued to complain that they had not put things into practice that the doctor had recommended. Two weeks ago they called me in the office with Human Resources and said they were redeploying me on medical grounds. Last week they again called me into the office and suspended me on medical grounds on full pay.
At this point I had been pretty well for the past two months. I received a letter from Human Resources later regarding my redeployment with a lot of things that were not discussed. On the same day I received the letter from my manager regarding my suspension. I feel I have been unfairly treated by the company because I have a condition that they were aware of when I took the job on. Please can you advise me.
As a disabled employee you enjoy certain legal rights at work, the most important of which is that your employer has a legal duty to make ‘reasonable adjustments’ to allow you to keep your existing post. Reasonable adjustments could include changing your working hours to early shifts and arranging for another worker to do your driving duties. The company doctor has confirmed that you are disabled. Your medical condition is a progressive one, which your employer was aware of at the time of the job offer. Your employer therefore was on notice that your medical condition could deteriorate, and so they should be prepared to make reasonable adjustments accordingly.
It seems that you cannot do driving duties because of your medication and blood pressure, and need to avoid working late shifts because of tiredness. The medical advice from the company doctor recommends changing your working hours, medical advice that your employer has decided not to follow. The company has now decided to redeploy and suspend you on medical grounds (presumably there is no medical recommendation for such action from the company doctor). These are two decisions that you might consider challenging.
There appear to be health and safety issues about you doing driving duties and becoming tired doing the late shifts. The question is whether your employer is dealing with this problem in the correct way: should the matter be dealt with by making reasonable adjustments or medical suspension and redeployment?
It seems that you are under medical suspension pending the redeployment. The purpose of medical suspension is to protect the wellbeing of workers for health and safety reasons (this is not necessarily the same as making reasonable adjustments). But such a step should be done only with medical advice after a medical assessment. Your (non medically qualified) manager appears to have made this decision to medically suspend you without obtaining medical advice. Check if the company medical report mentions anything about medical suspension. Moreover, the company should have consulted you and sought further medical advice before making this decision.
You should obtain a copy of the company medical report and seek alternative medical advice from your own doctor.
You could seek a meeting with your manager, asking the following questions: Did they get medical advice about the suspension, and if so, what was it? How long will the medical suspension be for? When will you be redeployed, and what will be the terms and conditions of the new job? Can you do the new job on a trial basis, and be able to return to your previous post if needs be? Why are they medically suspending you rather than making reasonable adjustments ?
Your complaints seem to have produced no results. Your next step could be to file a tribunal application (see the link on the right hand side), claiming disability discrimination on the grounds that your employer has failed to make reasonable adjustments. The medical suspension and redeployment may also be a breach of contract. It’s very important that get legal advice to help you with this next step.
What happened next?
Thank you for your help. Just to clarify my situation now.
My employers did not ask their own doctor for medical advice on me before suspending me on medical grounds. The employers have received four letters now from their own doctor asking them to put me on the early shift. This still did not happen. And when I returned back to work from the suspension no letter for the suspension to be lifted or to explain why I was suspended medically in the first place.
I returned to back to work after being told to come back in June. Their company doctor arranged this as he was not happy they had suspended me. When I returned to work I was told to scan in and out on my lunch break and told I was causing an atmosphere in the office. This is because I was quiet and just went about my work. I told my line manager this was not true and then I was asked if I was aware of the code of conduct at work act. This caused me more stress. After two days of this I went off sick again due to stress. I saw the company doctor again two weeks ago who said he has never had a case like it the company had done nothing and ignored everything he had asked. Their doctor wrote to them again stating due to problems with the management again I was suffering from work related stress.
I have just had a meeting with HR about the medical redeployment who say they cannot find me another job and if they don't find me one before in the next month I could face medical incapacity that could lose me my job. I have noticed that they have already put in place a part time supervisor and have now advertised for another mobile one. I stated to HR that they did not intend to find me employment and their aim was to dispense with me as they have advertised my position with two part time staff. They accommodated another member of staff with a job 8 till 4 some months back as she asked for a move. I have asked why I never got a chance at this job as it was an 8 till 4. I am told by this person her money has also been protected so she gets paid weekends. On the day I returned to work I was told by the manager I will not give you 8 till 4 but will now accommodate you with 9 till 4 and you will be loosing 14 hours pay a month. Can they do this? Many thanks for your advice.
Thank you for your feedback and update. I have some major concerns about your employer's flagrant breaches of contract and your own security of employment. The two things may be connected in that your employer might be behaving this way because they see you as being expendable.
You are now being subjected to bullying and harassment, a cut in hours and pay and facing dismissal for medical incapacity, on top of all the other forms of mistreatment you have already suffered.
It is clear now that your employer failed to seek medical advice before suspending you on medical grounds. Your employers also ignored their own medical advisers, in failing to implement the recommendation that you should work on the early shift. The worrying thing is that your employer does not seem to care about their behaviour or how you would react to it.
There is evidence that your employer has labelled you as a trouble maker and is now trying manage you out of your job, with a combination of forcing you to work late shifts, harassment and bullying, cutting your hours and pay, threatening you with disciplinary action and dismissal, and replacing you with new workers.
Your position in the company is now very difficult and your options are limited and not very attractive. Your options in dealing with this situation are basically:
Option one: you can continue to tolerate this mistreatment, whilst filing grievances that seem to be getting you nowhere. The likely outcome will be that you will remain on long term sick leave (with stress), with your position being filled by others. There is presently no incentive for your employer to return you to work or deal with your complaints, since you are effectively a virtual employee.
Option two: you can continue to challenge management and risk a managerial backlash - but this is already happening anyway. Your next step is to file a tribunal claim for disability discrimination and harassment. You will need to think carefully about this next step, since you will be effectively suing your existing employer, something that may permanently damage an already fraught employment relationship. Going to tribunal in the final analysis cannot not resolve the internal problems at work and may even exacerbate them.
Option three: you can resign from your employment. This is your worse option - since this is exactly what your employer wants you to do. It is better to remain on sick leave and look for another job in the meantime and then resign on your own terms. But remaining on sick leave in the long term will put you at risk of dismissal on the grounds of capability (even if you have sick notes to cover your absence). You will of course also run out of sick pay.
Option four: I think your best option is to agree a termination or exit package, whereby you agree to terminate your employment (and not sue your employer), in exchange for financial compensation and an agreed job reference. Your employer may see this as an attractive option, since it will save them the trouble of dismissing you and thereby avoiding the risk of tribunal proceedings.
If you decide on Option 4, with the company offering you a termination package, you may need legal adviceto negotiate the terms of the agreement. Agreement can be done through ACAS with a 'COT3' agreement (a free service). The alternative is with a compromise agreement, where your employer must pay for the legal costs of you instructing an independent solicitor for advice. Obviously, a compromise agreement is preferable. Remember that no one can force you to resign from your job. But this may be your best option if things get worse at work.
My advice above is based on the premise that the employment relationship between you and your employer has completely broken down with no prospects of repair. But if I am mistaken, then you might consider using the services of ACAS to mediate and agree workable arrangements.
I am sorry that my advice seems to be so gloomy and pessimistic. But your feedback and update discloses a ruthless and intractable employer that is determined to get rid of you. However, remember that you do have legal rights and it is important to make the right choices. It is very important that you need to seek further legal advice.
I have to attend a medical
Because I have osteoarthritis I keep being turned down for a new position at the place I've worked at for nearly five years. They've told me if I get offered it this time I have to attend a medical to make sure it won't make my disability worse. That's obviously ridiculous as arthritis won't get better!
You have been denied a new post in the past because of your medical condition. You are suspicious of the need for a medical assessment and report now. You obviously see the medical report as another barrier to getting the post.
The worry is not so much the medical report, but what your employer will do with it. The questions that need answering are: what is the reason for the medical report? What decision will they make based on it? Is your medical condition relevant to the new job, and if so, how? Why are they getting a medical report now and not sooner? The essential question is: is your employer acting in good faith in getting the medical report?
Under the Disability Discrimination Act, an employer has a legal duty to make reasonable adjustments to allow a disabled employee to cope at work. This could mean getting a medical report to highlight any disability and to make recommendations as to what 'reasonable adjustments' should be made. In this respect, your employer is not doing anything wrong; indeed they are complying with a legal duty. The medical report should specify whether you are medically fit enough to do the job you applied for, taking into account any reasonable adjustments.
However, it seems that undergoing and passing a medical assessment is a pre condition to getting the job. Check whether other job candidates are also subjected to medical examination. If not, then this could be unlawful, in that you are subjected to medical examination and they are not. Your (non medically qualified) employer should not be making unjustified assumptions about whether you are medically fit to do the job.
On balance, your employer is probably not doing anything wrong in obtaining a medical report, so long as other candidates for the job are also medically assessed, and your employer then acts on the medical advice contained in the report.
I would advise you to have an informal meeting with your manager and ask him the questions mentioned above. I suspect that your employer is just being over cautious for health and safety reasons. My advice is to submit to a medical assessment, as a pre condition to getting the job. You can of course obtain a medical report from your own doctor and supply this to your employer. If you are turned down for the job for medical reasons, you will need to seek further advice, as there may be the possibility of disability discrimination.
I'm scared to discuss it
I have recently been diagnosed with bi-polar. I had two weeks off sick from work at this time as my depression was quite severe. On my return to work, (I am a learning support assistant in a primary school) I informed my head teacher of my condition and asked her if she felt that this would impact on the job that I do. This wasn't a return to work interview just me feeling that I needed to be honest about my condition due to the fact that we have a lot of vulnerable children in our school.
The head assured me that she didn't feel this would impact on my job and I should just continue in my role as normal. Since this time I have had to leave work on two occasions due to anxiety. This was not witnessed by any children as I was able to recognise signs and request that I go home.
On Monday I was called into the Head's office who informed me that she was taking me out of a group that I was working in because she didn't feel I was emotionally stable enough to deal with it. I was shocked and at first just agreed to do what they wanted me to. On reflection I felt that I had been dealt with quite harshly and the next day I arranged a meeting with the Head to ask why she felt I was emotionally unstable and had this been reflected in my work. I was informed that my colleague had commented that she needed someone who could support her more emotionally and she felt that I was not up to this. There was no mention of any negative impact on the children work with. The Head then went on to say that I should be aware that there would be budget cuts in July and she would be getting rid of the most unreliable staff.
I believe that all this has come about because I was honest about my condition, I also feel that I can not have any time off work in the future if I am not well because I will lose my job. The stress and anxiety this is causing me is having a very negative effect on my mental health but I am scared to discuss it with my employer in case she deems me as unstable or unreliable. Please help me, I am sure I am being discriminated against would like an expert opinion.
I understand that you suffer from bi-polar, with symptoms of depression and anxiety. After informing your employer of your medical condition, their response has been by taking you off classroom duties and a veiled threat of redundancy. This has caused your condition to worsen and increases the chances of losing your job. You are scared about taking sick leave or discussing your situation with the School. This sounds like a nightmare situation: it seems that the more honest and responsible you are with the School, the more your work situation worsens.
You are however protected under the Disability Discrimination Act, which prohibits mistreatment on the grounds of disability. You will need to get a medical report to confirm your disability. The lawrequires an employer to make 'reasonable adjustments' to allow you to cope at work, not to harass you and not to dismiss you for unjustifiable reasons.
Although your employer is using your disability as a weapon against you, you did the right thing in disclosing your disability. Your employer is now on notice of your disability and will have to make reasonable adjustments. A medical report will be useful in identifying and recommending reasonable adjustments, such as giving you more support in the classroom, change of hours and duties, more time to recover, and most importantly, have you medically assessed by the School doctor.
The School should not make medically uninformed, and possibly stereotypical, judgments about someone with bi-polar. If the School genuinely believes that there is a health and safety risk to the pupils, any action should be supported by medical evidence. You should also be invited to a meeting to discuss this situation. If dismissal is on the agenda, the ACAS code of practice (see the link on the right hand side) requires your employer to follow a fair and proper disciplinary procedure. Any dismissal or redundancy could be unfair and discriminatory otherwise.
Taking you out of the classroom could be justifiable, if it is a short term measure, pending medical assessment. But it seems that this decision was based a non medically qualified colleague making a medical judgement on your emotional state of mind. You are quite right: there is a difference between being emotional and allowing it to affect your work. It seems that the School failed to address the question of whether there was any detrimental impact on the children.
My advice is to ask the School or your own doctor for a medical report, confirming your disability and recommending reasonable adjustments. You should remind the School of their duty to make reasonable adjustment before taking unilateral action against you. I would lodge a grievance about the way you have been treated. It would not be advisable to compromise your heath for fear of repercussions; you should take time off work if you need to time to recover. It is very important that you seek advice, perhaps from your trades union.
The School has a duty towards the welfare of the children (which of course is paramount), as well as a duty towards you as an employee. This is a balancing exercise. But the children's welfare and your employment rights need not necessarily be in conflict. The School needs to manage the situation properly, and to obtain advice from Human Resources. But some of the School's decisions and actions seem to be uninformed and an over reaction. You should be treated you with sympathy and understanding, rather than being seen as a risk or liability to the School. I hope that this helps.
Could they discipline or dismiss me?
I work full time in the NHS. I have to work in a department two and a half days per week, which is not my usual department. I had two slipped disc operations in 2004/5, and now a hip replacement at the end of 2009.
I am concerned as I feel I can't cope with the pace of the department I've been sent to. Could they discipline or dismiss me because I cannot do that job? I can manage quite alright in my own department. Could this be regarded as a disability within the meaning of the Disability Discrimination Act?
Sorry to hear about your work situation.
There are essentially three questions, namely, are you disabled? Were 'reasonable adjustments' made? Are you at risk of dismissal?
Slip discs and hip (problems) replacements can be recognised as disabilities only if they have substantial and long term adverse effects on your normal daily activities. Doubtless you have mobility problems, are in pain and need more time to complete tasks. The real question, in the legal sense, is whether your medical condition is long term, lasting for at least one year or likely to reoccur in future. But if the operation has resulted in a permanent cure, then you would not be considered disabled. You will need a medical report to confirm your disability: ask your employer or your own doctor for a medical assessment and report.
If you are recognised as being disabled, then your employer has a legal duty to make 'reasonable adjustments', possibly including changing your job duties, place of work, and providing support and giving more time to complete tasks. Again a medical report is crucial in identifying and recommending reasonable adjustments. You will need to inform your employer of your medical condition, if you have not already done so. Your employer’s failure to make reasonable adjustments could be disability discrimination.
A person’s capability to do a job is potentially a fair reason for dismissal (non discriminatory dismissal). The ACAS code of practice places a duty on the employer to give the employee a chance to improve, with appropriate support like appraisals, training, monitoring, targets, reviews etc. Dismissal should be seen as a last and not first resort.
If you have been unfairly treated, you can lodge a grievance, mentioning the disability discrimination. You should seek support from your trades union. I would try to resolve this internally before escalating it to a tribunal claim.
It is best to discuss the situation with your employer, accompanied by your trades union rep. Ask if it is possible to work in your previous department only. Remind your employer of their duties under the Disability Discrimination Act and the ACAS code of practice. Quite often this informal approach is effective in such situations. If all fails, then you have the right to bring a tribunal claim.
Disclosing my disability
I work for a very large passenger transport provider as a driving instructor and NVQ assessor. I disclosed my disability (which is ME) on the form and have told them that standing for longer than 15 minutes causes me severe pain. When I asked my boss for his help with this his response was to put me on inspectors' duties which involve standing for an average of 8 to 10 hours.
I am so afraid to say anything else in case they sack me and I am now in constant pain, even with the morphine. Can you tell me or advise me on what to do. Thank you.
Your work situation sounds like a nightmare, with your constant pain and fear of complaining. But you do have rights and remedies under the law. The Disability Discrimination Act prohibits discrimination against a disabled worker. You may have a disability claim, providing that you can show that you are a disabled person.
ME (chronic fatigue syndrome) should probably be recognised a disability. Your employer has a duty to make 'reasonable adjustments' in your working conditions, for example transferring you or changing your job duties. Clearly it would not be unreasonable to take away your inspector duties (which require standing for long hours) and to replace them with a non standing role, possibly returning you to your previous job as driving instructor and NVQ assessor.
The company should send you to the company doctor to get a medical report, to diagnose your condition and to recommend what reasonable adjustments might be made, to allow you to cope at work. If this is not happening, you should get your own medical report from your GP, for the same purpose, and then send it to your employer.
If the pain of working under these conditions is unbearable, I advise you to go on sick leave (providing you have sick notes to cover your absence). Although I appreciate your fear of dismissal were you to complain, nevertheless, I advise you to file a complaint using the company's grievance procedure - see our guide 'How to use the grievance procedure'.
Clearly, this situation cannot go on indefinitely if you are presently in constant pain. Your employers should take active measures to help you cope at work. What you need to do is to remind them of their legal duties towards you. You should make a written complaint. It's probably a good idea to get an adviser to help you with this. I hope that this helps.
I was denied entry because I had cancer
After 26 years service in the Royal Navy I retired aged 42. During my last year's service I was diagnosed, treated and cured of cancer of the throat. I have made a full recovery and the last treatment was two years ago. I have been denied entry into the Royal Navy Reserve solely because I have had cancer. Is this discrimination?
I am sorry to hear that your application to return to the Royal Navy as a reservist has been unsuccessful. You said that the reason for rejecting your application was because of your medical condition.
Under the Disability Discrimination Act, cancer is a recognised disability. You may have been subjected to discrimination on the grounds of your disability, since a person applying to be a reservist, who did not have a disability, would not have been rejected.
But the problem is that under the law, there is a complete exemption which means that the Disability Discrimination Act does not apply to the armed forces. The exemption does not mean that they have to reject you, only that if they decide to reject you, they can take advantage of this exemption. But, unfortunately, this does mean that you can't bring a claim of discrimination against the Royal Navy.
I realise that this must seem very unfair, since your cancer was successfully treated two years ago. I can only imagine that the rationale for this exemption is to ensure that Royal Navy personnel have combat effectiveness. But I am sure that you could have provided an effective service to the Royal Navy, notwithstanding your medical condition. This blanket exemption appears to be harsh in that it effectively excludes individuals like yourself.
You could consider writing to the Royal Navy and explaining that you know that it is exempt from the Disability Discrimination Act but that its actions are against the spirit of the law. You could say that you would be willing to undergo regular medical tests to check your fitness, which would be fairer to you and a more sensible way for them to assess your health. Sometimes an informal approach like this can work, but I'm afraid that the law can't back you up in this case.
I am sorry that I cannot be more helpful.
What is covered by the DDA?
I'm after a little bit advice on what conditions are covered by Disability Discrimination Act (DDA).
The conditions are ME and a potentially life threatening, but rare, condition that affects all the major organs. Would these be covered by DDA? The ME was diagnosed 12 months ago and the other condition was diagnosed about three years ago.
I understand that you are suffering from ME and another serious medical condition. And you want to know if the Disability Discrimination Act covers your situation.
Unlike other forms of discrimination, for example, race or sex, a person needs to prove that he/she is a disabled person under the Disability Discrimination Act. There is no list of disabilities. Instead there is a test for deciding whether a person is disabled as recognised by the law.
The hurdles that a disabled person must overcome to prove they are disabled are that:
1. there is a mental or physical impairment
2. there are adverse effects
3. the effects are substantial
4. the effects are long term
5. the long term and substantial effects affect normal daily activities
It seems to me that ME and the potentially life threatening condition could fall within this definition. They are undoubtedly physical impairments. If these physical impairments cause pain or restrict your movements or cause inconvenience or mean it takes a longer time to do things, then the adverse effects are substantial. What counts is not whether you can or cannot do certain tasks, but whether you experience difficulty in doing them. The substantial adverse effects are long term if there is no permanent cure (any treatment that provides a temporary cure can be ignored). Long term means a condition that has lasted for at least one year, is terminal or is likely to continue in the future for at least one year (even though presently it is in remission). Normal daily activities are ones that people ordinarily do as part of their daily lives for example, cooking, cleaning, walking etc.
I know that there is a medical dispute about whether ME is a recognised medical condition. But what counts is not whether a condition is medically recognised, but what affect this condition has on that person. So long as the five stage test is satisfied, then the condition will be deemed a disability, as recognised by the law.
Once a disabled person has shown that they have a disability as defined by the law, they can then claim that there has been discrimination. So it is a two stage process.
The forms of discrimination recognised under the law are:
- direct discrimination (for example, a prejudice against people with a history of mental illness)
- disability related discrimination (for example, dismissing someone for absence from work or poor work performance caused by a disability)*
- harassment (for example, bullying a person because of their mental illness by name calling and insults)
- failing to make reasonable adjustments (for example, not providing a lift or ramp for wheelchair users)
- victimisation (for example, mistreatment for complaining about disability discrimination)
For further information, visit the Equality and Human Rights Commission website (see the link on the right hand side). If you think that you might have experienced discrimination get advice from an expert - see Get discrimination advice.
I'm at my nerves end
I had a fall from a stool at work two years ago. I have now had to have surgery. I am taking my employer to court, but they have been trying to discredit me, and now Ii have to face a disciplinary hearing to see if my team leader has a case against me. I now suffer from stress and I am on a mild form of tranquiliser and I am still in pain with the injury. I have not had any physio after my operation, but it was mentioned that a knee replacement can be done on people as young as me. Now I have been told I could lose my job, even though I am taking my employer to court. Can they do this? I can't sleep, and I am now just at my nerves end.
I am sorry about your problems at work. I understand that you had an accident at work and you are now suing your employer for personal injury through the courts. You believe that your employer is threatening you with dismissal and has subjected you to a complaint for taking this court action. You are now suffering from work related stress.
Personal injury is a form of negligence that your employer might be liable for. The Health and Safety regulations lay down strict duties on employers in respect of plant, machinery and fellow workers. There should be a health and safety representative you can consult. The Health and Safety Executive can give you more information.
You have an absolute legal right to sue your employer for an accident at work that you believe might have arisen from poor health and safety. Moreover, you might have another personal injury claim, if you believe that your stress is work related and caused by your employer's victimisation of you.
I advise you to seek legal advice from a personal injury lawyer or a trades union.
You could also consider raising a grievance for the personal injury you suffered and the victimisation. You can read more about raising a grievance in our guide Dealing with discrimination at work - How to use the grievance procedure. If you are dismissed, you can file a claim for unfair dismissal, providing you lodge the claim within three months of the date of dismissal.
I feel I’m being punished
I have bone/breast/liver cancer. I have worked for the same company for almost 10 years. I have had three different lots of chemo and worked reduced hours through the last two, and until now work has been very supportive.
However during this last treatment, from which I am now classed as in remission, my manager has changed. I have been informed that my performance for the last six months will be classed as a level 2 (under-performing) even though I was on treatment, working very reduced hours. If had I been signed off for the whole period I would be a level 3 (standard performance) which is what I had expected. So by trying to work through treatment rather than being signed off, when they may have been able to put me on long term disability, I feel I am being punished. Is this grounds for discrimination?
I really admire your bravery and determination in the face of adversity in working through your illness. And it seems that things were fine until your manager changed.
My understanding is that you have got an unexpectedly poor performance appraisal classed as level 2, whilst you were working and undergoing treatment. It appears to me that your medical condition is making it difficult for you to perform at work.
I would like to reassure you that your medical condition amounts to a disability covered by the Disability Discrimination Act 1995. I believe that you may have two possible disability discrimination claims against your employer.
Firstly, your employer failed to make the ‘reasonable adjustments’ he is required to by law, by assessing your performance and failing to take into account your disability. Reasonable adjustments are measures to let you cope at work in spite of your medical condition, such as classing your performance as a level 3, instead of as a level 2, allowing you to work flexibly, changing your duties and so on.
Secondly, you may possibly have been discriminated against for a reason related to your disability. Because your work performance is affected by your disability, your employer should not use it as a reason to give you a poor performance appraisal. This is unlawful.
You may believe that you have only two options: either trying to work whilst undergoing treatment and being penalised, or being signed off and consequently not penalised. I want to make clear that there is a third option. You are entitled by law to work whilst undergoing treatment with reasonable adjustments made by your employer, and without being penalised for your allegedly poor performance due to your illness or treatment.
To sort out the situation you are not happy with, you can lodge a formal grievance to your employer to complain about it (see the Advicenow guide 'Dealing with discrimination at work – how to use the grievance procedure' in the menu on the right hand side). If you’re not happy with the result and you would like to consider bringing a tribunal clam I will be happy to give you further legal advice before issuing proceedings. You can read more about taking a claim to a tribunal in the links on the right hand side.
Must older people ‘just get on with it’?
I am an advocate and have just received a referral for a man of 78 with a prosthesis (false leg). This is ill-fitting and he has endured discomfort for two years. When asked why he did not go back to his GP to complain he simply said it is 'because I am old and they do not think it is worth doing a proper fitting one so I must just get on with it'. The person who referred him quite rightly said that he is a person and every right to have a proper fitting prosthesis. If we come up against great problems with this can you advise what we can say in his defence. Surely this is discrimination?
This could be discrimination on the grounds of age or disability. If this gentleman has been told that it’s not worth getting him a properly fitting prosthesis because of his age; that clearly sounds like age discrimination. Unfortunately, the age discrimination regulations do not cover health at the moment.
But because hospitals/GPs provide a public service, they are required by law to respect people’s human rights. One human right is the right to private life. You could argue that not providing this gentleman with a properly fitting prosthesis goes against his right to a private life because the pain it causes him stops him from being active. And if the only reason the GP is not respecting this gentleman’s right to private life is because of his age, he is discriminating against this gentleman in the use of his human rights. But be aware that the right to private life is a qualified human right. This means that if a public service provider can show that there is an acceptable reason why it can’t respect someone’s right to private life in a particular situation, it doesn’t have to.
In addition, this gentleman is disabled. By not providing him with a properly fitting prosthesis, the GP/hospital are probably discriminating against him for a reason relating to his disability. Again, the law allows the GP/hospital to try and justify this decision but it will only be able to do so in very narrowly defined circumstances.
This gentleman should certainly think about making a complaint to the GP practice or the NHS Trust, using their internal complaints procedure. He should point out that he feels that he is being discriminated against for a reason relating to his disability and that his human rights are being ignored. It’s also worth getting in touch with an organisation that campaigns for the elderly like Age Concern or Help the Aged who might be able to give you more help and support. If this doesn’t get him anywhere, he can get in touch with his local Independent Complaints Advocacy Service or make a complaint to the General Medical Council (the governing body for doctors). See the link on the right hand side for more information on making a complaint.
As a last resort, he could get further advice from a discrimination specialist at his local advice agency to find out whether it would be worth suing his GP or the NHS Trust in the county courts. There is a six-month time limit for making a claim. The Commission for Equalities and Human Rights may provide legal representation.
Where do I stand after fall?
A year ago I was involved in an accident whilst at work through no fault of my own. As I do not like to take time off work the company doctor advised my employer that I would only be allowed to work restricted hours and very light duties due to my shoulder being badly damaged. The recovery period would be twelve to eighteen months but would never be 100 per cent - at best 80 per cent.
You can read more readers' problems by using the menu on the right hand side.
I find this most unfair as the company has a duty of care towards me and have been paying me a full salary for a year. I am in this predicament due to persons unknown causing me to have a very severe fall. Where do I stand? Is this a case for disability discrimination?
I am sorry to hear about your accident at work. If it was caused by your employer's negligence, you might be able to claim compensation from your employer for the reduction in your wages and any other money you have lost or had to pay out as a result of the accident. You will need to get advice on this from a personal injury lawyer. You can search for a lawyer on the Association of Personal Injury Lawyers website. The time limit for bringing a personal injury claim is three years from the date of the accident.
Because your accident has caused you to have a long-term physical impairment (a problem with your shoulder) you are almost certainly protected by disability discrimination laws. This means your employer has a duty to get medical advice about your condition and make reasonable adjustments to help you work effectively. By getting medical advice from the company doctor and, as a result of that advice, reducing your hours and duties, your employer has probably fulfilled these obligations. But if you disagree with the company doctor's recommendations, you can get your own medical report from your own doctor.
Still, there are a number of things you might be able to do about your reduced pay. If you are a member of a trade union, get some advice from your rep on these:
- Look at your employment contract to check your sick pay entitlements.
- Check any information about staff entitlements to see whether you are covered by any insurance purchased by your employer.
- Ask your HR department if the reduction in salary can be phased in gradually over a number of months to help you get used to being on less pay. If you decide to go for this option, you could also find out whether you can get any incapacity benefit to supplement your income and look into any payment protection insurance you might have (for example, for your mortgage) if you are struggling with your regular outgoings.
- Find out if you are entitled to medical retirement, something that applies to employees who are permanently unfit to work.
Too old for treatment?
I sometimes go and visit an elderly gentleman whose wife I used to look after before she died. He’s in his 80s but manages really well. Recently he started to suffer from claustrophobia. He went to the GP about it who told him he was too old to be treated. Is this right? I can’t see why he shouldn’t be treated like anyone else.
It seems that this elderly gentleman has been refused medical treatment by his doctor because he is too old. Firstly, we need to know if this refusal was for medical reasons or just because of his age. Sometimes there are good medical grounds for refusing treatment but the doctor should have explained this to him.
If he was refused treatment just because of his age, then this is discrimination. Although there is legislation that outlaws discrimination against older people, unfortunately it only covers employment situations and not medical services. However, organisations like Age Concern are lobbying the Government for a change in the law, so that goods and services are covered too.
The doctor might have considered making a referral to other organisations that could help him (for example counselling). If this doctor is discriminating against this elderly gentleman, without good medical reasons, then you might consider making a complaint to the surgery. If this does not produce results, then make a complaint to the General Medical Council (the governing body for doctors). There are also campaigning organisations for the elderly that could help, like, Age Concern or Help the Aged.