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Ash213 profile image

Anybody experienced discrimination from potential employers due to having a transplant? Im at a stage where nobody will employ me because I've had one and i can't claim benifits either... Really struggling here

26 Replies

My background is as a fully qualified HR officer, and one of my last roles was as a recruitment specialist. Companies cannot legally refuse to employ you (or offer you a job) on the basis of having a medical condition. Are you making it to interview stage, or not even getting that far? Have you asked for feedback from potential employers? If they can’t justify the decision not to hire you (or even interview you) beyond your health, they’re in breach of the equality act, and you can take them to tribunal for direct discrimination. If you haven’t asked for feedback, what is it that makes you think that your health is the reason for not being employed? Not being difficult, just trying to ascertain the facts to try and help you as much as possible.

Ash213 profile image
Ash213 in reply to Charlie_G

Thanks for the response Charlie. I will use my last two recent applications as an example. I applied for a job driving job, got to the stage where the employer was 'all smiles' everything seemed to be going well and in the right direction, they asked me to provide any medical history which I did, recent results,ecg records, doctors ok note i was fit as a fiddle could drive etc. After supplying said information thier reply was 'we cannot employ you at this time due to current circumstances '. Second job application - handyman. Same process, abilities and skills to carry out the work needed - excellent you cover everything we need, any medical information we should know? 'yes heart transplant in 2016 , im fit and healthy, here's evidence and a letter from the surgeon saying how well i am and how im fit to work' immediately after - 'sorry we can't employ you at this current time, good luck in the future' when I ask why I wasn't successful they use the excuse 'we've filled the position, or ' you do not meet the requirements of the position at the moment' literally after saying that i am everything they need and the post is still open ? I know they'll never say 'you had a heart transplant, no chance' otherwise as you said i could take action against them . They hide behind other excuses but you know full well its because you've had a heart transplant, I'm lost, feeling utterly depressed and nowhere to go, no matter what I try it just doesn't seem to work, can't get anywhere

Charlie_G profile image
Charlie_G in reply to Ash213

Okay, just clarify for me: at the point either or the two examples you gave asked you about your health, had they already formally offered you the job? If they hadn’t offered you the role, and they asked about your health beyond a generic ‘is there anything healthwise that may prohibit you from doing the job? - and even that is risky a lot of the time, so most people would avoid doing so -, they’re immediately breaking employment law. With one or two exceptions, all employers are prohibited from asking health questions prior to making a formal offer of employment. Even if you spontaneously volunteered information about your health at interview, it’s extremely difficult to follow up on that without falling afoul of the equality act. If they offer you the job, you accept, disclose a medical condition, and they then withdraw the offer, they’re also breaking the law.

If they hadn’t offered you the job when the issue of health came up, the law is automatically on your side: the burden of proof will be on the employer to demonstrate that there was some other substantial reason not to offer you the role. Same with if they withdrew a formal offer of employment after receipt of medical information. They would have to convincingly prove that you were not capable of carrying out the role even with reasonable adjustments, or that there was a candidate better suited to the job. If they can’t do that, they haven’t got a leg to stand on. As a recruiter, if you’re shortlisting or interviewing, you are (or should be) acutely aware that you can be taken to tribunal by any candidate, and that any reason for not taking their recruitment further needs to be able to stand up. The justifications you’ve been given would not stand up. End of. Smaller companies often don’t have the experience or understanding of recruitment and employment law, so will be more likely to do this kind of thing, but ignorance is not an acceptable defence.

You may find this short Q&A useful to you going forward:

personneltoday.com/hr/legal...

If they hadn’t offered you the job when the issue of health came up, or a formal offer of employment was withdrawn, I would very strongly encourage you to contact ACAS and speak to them about whether or not you have a case - or several - for starting tribunal proceedings.

Ash213 profile image
Ash213 in reply to Charlie_G

That's a bit of fresh air i needed today so thanks for this information. For sure I will fight this, i can't see how any potential employer could legitimately refuse you on medical grounds especially if a superior medical professional has ok me fit for work. Just to clarify neither examples had formally offered me the position however both examples showed strong signs of intent until the medical subject was raised

Charlie_G profile image
Charlie_G in reply to Ash213

Glad if it was useful. If I can be of any more help, feel free to drop me a message. Bottom line is they can’t generally ask you about health, and even when they are legally entitled to, they can’t use that information to justify a decision unless it makes you completely unfit for the role: the only way the message will properly filter down to small(er) businesses is when they’re challenged on it via tribunal and held to account, but that means prospective employees need to know what their rights are, too.

Ash213 profile image
Ash213 in reply to Charlie_G

Yes definitely useful and the Q&A helps for future plans. One quick question if I may, if you have any information that you would be great. if i was to apply for a hgv license for example, my medical team have given me the all clear, results show as much and i attend a medical examination, as i believe hgv drivers have to take. would my surgical team and evidence 'outrank' that of the dvla or the medical examiners conclusion of my health? Could you appeal for example if you feel that it the decision was incorrect?

Charlie_G profile image
Charlie_G in reply to Ash213

I actually did some work with HGV driving employees previously. The medical examination is organised externally to the DVLA, either by the applicant themselves, or by the training company doing (or employer paying for) the training. If you’re organising it independently, it’s a paid service usually done via your GP, if they’re able and willing to provide it, or a private medic. As I understand it, it’s either pass or fail: the written section of the D4 takes medical history into account, because what they’re interested in is any health problem that could directly cause you to lose control of the vehicle, or otherwise impair your judgement whilst behind the wheel. If there’s nothing currently relevant that could result in that, it should be a pass, but my understanding is that the examination result will supersede any other evidence or advice, as assessing fitness to drive is the sole purpose of the medical testing. I don’t know whether you could appeal the medical fail itself, although my gut instinct would be probably not, but I wonder if you could attempt to lodge an appeal against the overall DVLA refusal to issue a licence and submit medical evidence at that point? I had a quick look at the current assessing fitness to drive guidance provided to doctors, and when it comes to heart transplant, I’ve attached a capture of what it says regarding group 2 licences.

DVLA guidance on fitness to drive group 1 and group 2 after heart transplant
Ash213 profile image
Ash213 in reply to Charlie_G

Amazing, thank you so much for your time and effort /information on this. It really has brought a new look to the whole topic and has helped massively. I can take the information you've supplied /suggested and certainly put into practice

Dolphin14 profile image
Dolphin14 in reply to Charlie_G

You've given out some great information. May I ask a question? Do you have to disclose heart transplant or bypass if you are cleared medically? I guess my question would apply to any illness or condition.

I'm really curious about this now.

Would the business be thinking of workman's comp issues etc when they are looking to make decisions. Thinking things could backfire for them?

Again, just curiosity based on your experience

🐬

Charlie_G profile image
Charlie_G in reply to Dolphin14

My professional advice would be to always declare any health issues, even if they’re historical, or you don’t believe them to be relevant. The reasons I say that are:

1. In the event you have a serious, medical emergency at work, if you’re unconscious or otherwise incapacitated, your employer is going to give the paramedics whatever information they have on file regarding your health. If you haven’t declared something, that could have life-threatening implications. Worst case scenario, it could potentially cost you your life. The definition used by the equality act regarding disability is extremely broad, and many people who wouldn’t necessarily describe themselves as disabled meet the act definition and are therefore protected. With that protection, at the point you have been offered a job and asked about your health and medical history, they cannot revoke the offer on the basis of what you declare. The only exception to that would be if your health completely precluded you from doing the job even with reasonable adjustments. For example, if you had a cardiac problem that meant you shouldn’t be driving, and you accepted a driving job, it would be acceptable to revoke the offer in response to the medical disclosure. But they would have to have evidence you shouldn’t be driving, not just a belief. There’s also a legal obligation to make reasonable adjustments for employees that meet the act definition, and before terminating employment - or withdrawing an offer of employment - they would have to demonstrate that there were no reasonable adjustments at all that could be made to enable the person to perform in the role.

2. If it’s worth the paper it’s written on, your terms and conditions of employment (your contract), will usually include a statement to the effect of failing to disclose a medical condition being a disciplinary offence. If you failed to disclose a medical condition on appointment, you’re then in breach of your terms of employment, and would most likely be dismissed. This applies to both not disclosing conditions when asked on accepting a job, but also not subsequently volunteering information about a condition that develops which effects your ability to do your job - even if purely through absence. By declaring medical conditions, you’re protecting yourself from dismissal due to being in breach of contract.

3. As mentioned in the first point, employers are legally obligated to make reasonable adjustments to keep disabled employees in work. They can’t fairly dismiss an employee for health-related capability (their ability - or not - to do their job), unless they can demonstrate that they’ve tried to make reasonable adjustments. The only exception is if there are no reasonable adjustments that could possibly enable someone to do a particular job, or no possibility of redeploying the person to another role, but they have to be able to prove this. If you fail to declare a medical condition, you’re denying yourself extra support and protection.

Last but not least, HR professionals are human beings. Whilst we try to be impartial, we have flaws the same as everyone else, and we make judgements about the people we interact with. Personally, I will always do my best to act politely and professionally regardless, but I can’t deny that I have far more time, understanding and compassion for people that have been honest from the outset, than those that choose not to disclose health information. If you’ve been straight from the start, I will do absolutely everything in my power to try and help you. If you’ve lied, or obfuscated, then I will still do my job, but I’m not going to do anything above or beyond that. I’m not going to go out of my way looking for solutions to a mess of your own making 🤷‍♂️

Dolphin14 profile image
Dolphin14 in reply to Charlie_G

Thank you so much. You took a lot of time to explain and I really appreciated that.

🐬

Dauris profile image
Dauris in reply to Dolphin14

Just don’t mention anything about your health unless they have given you a offer of employment in writing first !!

That way if the job doesn’t then go ahead , it’s going to provide you with a advantage when you take things further

Just make sure the offer is already in your coat pocket l!!

Expect it to be swiped by them i f it’s on the desk between you both when you tell them about your past .

Dauris profile image
Dauris in reply to Charlie_G

I am currently going through the tribunal and I am doing it alone and it’s been overwhelming. I’d love some support as I was meant to have a four day hearing last week but ended up in hospital and postponed till Nov now . Their solicitor is trying to strike out claim as I was late submitting Scott’s statement after pre hearing last year. I was bullied so much for 5 months after returning from a heart attack at 42 years old and ended up being dismissed by email a week before Xmas 19 . I’ve so much evidence and the way I was treated was appalling. I just found it really hard to open up for the paperwork to justify my mental health and how it was all getting to me and knowing anybody can read what I write I found to be really hard. I’ve done it in the end but it was really hard to take it all in and due to lock down no advice from anywhere . I think I’ve done a good job but current health could mean I’m not here by Nov. It’s made my life a constant hell ever since I had a heart attack July 19 . I’m always on edge . I worry constantly about case and I wish I was finally given the peace and quiet to try and move on from having a heart attack and I know it’s my choice to go to the tribunal but I wasn’t planning my life to go how it has and I would much prefer to be the person i was before it and not the poor excuse and nervous wreak I am now

Yup same here ,, I’m three months past heart attack I don’t get any benifits either due to my husband working and I was offered a job recently that was perfect for me cus it was Covid cleaning , which means I wipe down surfaces and it’s not strenuous at all , I am a chef by trade and I thought that would be perfect for now , anyway as soon as they heard I had recently had a heart attack they said they couldn’t employ me because of their insurance 🙄🙄 .

Ash213 profile image
Ash213 in reply to Notdead

Such a vicious and horrible place to be isn't it? I was made redundant this year so thought It must be me and the jobs im applying for , but I've applied for jobs im over qualified for and had previously, and they still say i dont meet the skills needed, even though my regime says im perfect for the post as soon as they know im post transplant the door is shut in my face

Notdead profile image
Notdead in reply to Ash213

Yes it’s horrible and for me I’m not at the stage where I can actually go back to work yet anyway, but I still have bills mounting up that I can’t pay due to having no funds at all , can’t get benifits cus frankly I could work in a lighter job instead of a heavy job being a chef . I’m not allowed to go back to work atm and I know I have another couple of months of that . It sucks . And you are right they never give you the ‘ reason ‘ of heart transplant or heart attack in the reason,, that would be like saying you are female or you have kids under five . It’s a legal thing.

Gaz_chops profile image
Gaz_chops in reply to Notdead

If you where working before your HA and paid National Insurance then you would be entitled to Contribution Based benefit regardless!

Dauris profile image
Dauris in reply to Ash213

You don’t need to tell them until you have been offered a role .

Then if after you tell them and see if they change their minds , if so you got a discrimination claim

Dauris profile image
Dauris in reply to Notdead

You can’t work in a covid job , your immune system won’t be strong enough to be able to fight it off

Best of luck with this. There's lots of ways that employers can fiddle selection results to match what they want. It's unfair but it's like a lot of discrimination. They do what they like and the clever ones cover their tracks well. Good luck though.

Comments here about it being illegal to to refuse employment be of a medical condition. I was a dentist but I developed severe psoriatic arthritis. It means I can’t hold a knife and fork, let alone work upside down, back to front on a moving target in a wet mirror with diamond tipped cutting tools. Employers are always going to prefer someone who they feel is more reliable but modern employment law is so complex that they just don’t want to take any chances.

Dauris profile image
Dauris in reply to Mentdent

Employment law is not as bad as you think, Check out the Acas code as all business are required to follow their procedures. My boss thought I would just go away I guess as I was only employed for 6 months. But if you fall under the equity act 2010 , then you can make a claim to the tribunals but you have to start it quickly

Mentdent profile image
Mentdent in reply to Dauris

You don’t get the point. Employers don’t like employing disabled people because of the protection employment law gives us so they find ways of not employing us in the first place.

A health issue can work against us in many ways. I was a self-employed Architect when I had my heart attack. Several Clients cancelled projects on the back of that..... apparently to lighten my load. I was actually back at work a week after the event, but that made no difference.

Dauris profile image
Dauris in reply to GWP1952

Why are you telling people ? If it’s not going to affect your work then leave your personal life away from work

GWP1952 profile image
GWP1952 in reply to Dauris

Architecture is a very personal service. The relationship with a client is one to one, nothing like a business to business relationship. To not have told my clients would have been professionally negligent. Besides, I "disappeared" for a week when I had my HA. I had to explain my absence.

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