Equal Opportunities nerd needed! Job on the line.

[Sarah-Jane]

Hi, I'm having a spot of bother with work and wondered whether anyone has some knowledge I can use? Since I have been having troubles, returned to work, struggled to stay in work, etc I have been fighting to stay in work. The problems stem from my returning too soon without first having got my medication, pain or diagnosis sorted out.

I found out that I could get help getting back to work with Access to Work who assessed my needs and the adaptations the school would need to do. However, even with all of this I kept being off work for various reasons. Work have put into place everything they have to and have adjusted my work environment. However with the newness of having FM, learning what I could and could no longer do, discovering that Physiotherapy and Hydrotherapy actually caused me more pain so more time off - so I stopped both, the move from one base to another until settling into an area where my health has improved.

Still I cannot help the weakness now in my lower back causing me so much pain I cannot work and other illnesses unconnected with FM.

I have my Union backing me but they have asked me to search the internet and read up Equal Opportunities to see whether there is anything there that can help. I have just had a meeting which resulted in a letter being drafted. When I get this letter I will have 5 days to Appeal. If I don't or my appeal is unsuccessful, they can fire me. I have never been fired in my life! But to be honest there is very little we can do now other than Appeal to my Head Teacher. He has not been involved.

Also I have offered numerous times to reduce my hours or to cut my hours down so I am not in work Wednesday giving me a mid-week break. This would have helped me a lot in the beginning. The annoying this is this was dismissed as not possible. However, they have employed several new TAs one of which would love my spare hours! But they still refuse. This point is my only hope as far as I can see.

Any ideas? Information? Guidance?

It would be much appreciated.

[onhereagain]

I am not sure your union are dealing with this correctly they should be contacting their own disability specialists and legal team for advice at union HQ as this seems like the employer are not complying with the Equality Acr 2010 incorporating the Disability Discrimination Act. You have mentioned Access to Work did they make any comments regarding reducing hours etc? All appointments to do with treatment and after effects of treatment should be given as Disability Aadjustment Leave (DAL) as a "Reasonable Adjustment" as should reduced working hours.

This means you would go to Physio would get travelling time and time for appointment if you returned to work you would also get travelling time backand this could not be counted against you regarding manageing attendance.

If however you could not return due to pain they should let you have the rest of that day as DAL. Any further sickness due to this should be classed as disability related sickness and this must be counted seperately from ordinary sickness absence as to do so would put you at a disadvantage although extreme levels would not be acceptable to any employer.

Please explain what you do and if these "Reasonable Adjustments" have been put in place and ask your Rep what they are doing regarding all this. On what grounds are they trying to dismiss you? If capability then have they nade all reasonable adjustments required? Might need to have verbal conversation to help more although your Rep should really get a disability Champion on the case> Who is trying to sack you as I thought HT was in charge of hiring/firing well when I was school governor it would have been on their say so.

[Sarah-Jane in reply to onhereagain]

Hi, first of all, thank you for replying. I am a teaching assistant in secondary school. My disability related absence and any appointments have been dealt with separately and I believe correctly. Hydro Therapy caused back strain, being a Wednesday it meant at least one day off following the appointment. All of the reasonable adjustments according to the Disability Discrimination Act 2010 have been carefully covered. The only loop hole I can currently see is they expected 100% attendance following stage 3. They allowed 3 of these and County are not happy that I have been given this lee-way. This is all attendance. The illness I have had separate to FM have been assessed separately. However I was also hauled up for competency as my assessment of my work was below acceptable standards. To say I was shocked is an understatement. 14 years a TA! I have worked towards becoming a teacher and decided not to take that route as I did not like the associate politics - although I loved teaching. The paperwork [not marking] is horrendous. Anyway I did train to HLTA standards which is an almost teacher. Higher Level Teaching Assistant. It allowed me to teach individuals, small groups and classes. To be told I was incompetent was a shock. However FM was taken into consideration and I was reassessed in a less direct and confrontational way - less stress, and found to be competent. So you see they are trying every way to get rid of me. The Council are trying, but the letter I have just received today and intend appealing will lead to an appeal with the HT. I have no idea of his opinion as he has had no part to play in this.

[TheAuthor]

Hi Sarah-Jane

I am so sorry to read that you are being forced to endure this nightmare still, and that you are not being afforded the dignity that you deserve. I have pasted two links relating to the equalities act of 2010 below. The first link is the acas link with pdf to read the act itself. I would personally contact acas and get their guidance on this matter.

acas.org.uk/index.aspx?arti...

gov.uk/equality-act-2010-gu...

I have also posted you the GOV.UK disability discrimination act as Fibromyalgia is a recognised disability. However, I think you will really need to act very quickly in relation to your job. I did mention dignity at the start? Do you think your dignity is being infringed? This comes under the DDA.

webarchive.nationalarchives...

I want to wish you all the best of luck with this my friend.

Ken x

[Offcut]

I had similar I was in ICU for 32 days and off work for 5.5 months they were going to give me a written warning. I explained that they were aware of my conditions when they employed me as I put them on my forms. I got in touch with the equal opportunities commission who would would of took it further if they did give me the warning. They did back down and make all the right moves after that but I was made redundant in the end!

I would say your union are dragging their feet on this. Above advice is good but you need to act quickly it seems.

[Need2loseweight]

Sarah Jane

I sympathise with you and it's not helpful for you to work full time - you need to change to a part time job if you can afford it. Hope the following helps.

Firstly - don't moan about your fibro as no one understands the type of pain, and get fed up hearing about it,..they will see your stiffness though.

Secondly - you don't have much choice while working full time but to rest in your own time and do nothing a much as possible....it's a drag but necessary.

Thirdly - try to take walks daily as it does ease the joints ..swimming if possible regularly. Your joints will ache afterwards or the following day but it honestly helps. Lack of exercise just adds to stiffness and pain.

finally, I had to give up my full time work but still struggle to work part time coping with cognitive and physical problems with fibro. I know if I gave up my job my employers would not have me back as they want someone who is not disabled to fill my place.

[twinks]

You could also speak to citizens advice see if the can back you as well. As have been said... act fast now.

I had similar and dda was there but I didn't know anything about it at the time. My union was hopeless and I got sacked without any warning ..It was a shock but I was too ill ...at the time and still am.

All the best x

[Sarah-Jane]

Thank you, everyone, for your support and suggestions. I was surprised when I was told by my Union rep that he was too busy to look into the Equal Opp for a loop hole, but maybe he feels I am too complacent. I have to make myself shut up in these meetings as I can say the wrong things. The competency meeting was won by my rep when I did this. I will have to contact him now and tell him my thoughts on things. Also to let him know the letter has arrived. First I must think through the grounds on which I can Appeal. At the moment I think the fact that I offered to cut my hours when I was at my worst was turned down as not possible. I suppose they couldn't fill the hours - but they've had the chance since with new staff! Also I was expected to remain well for 100% of the time over a year! I missed that. If I accept this letter and am off sick again it will lead to another shorter term and then dismissal. So that will probably be by the end of the school year! It's hard to keep fighting and not to give into tears...your support is very welcome.

[mitziblue]

Honey, I had the same problems and had to give up and apply for disability. I hated to but, I knew my body wouldn't let me do the thing's I once did any longer. Hope this helps...sending love and prayer's for you!! If I can help any further PM me. xxxx Mitzi

[Sarah-Jane]

I am really lucky in not being too bad. I can and do work Monday to Friday, six lessons a day and just feel a little tired at the end. I pace myself carefully and have found my health to be improving, but I have a weakness in my back and am finding that to be the most recent problem. Well, the problem seeing as Access to Work resolved the mobility issue - work just went along with it. I don't want to give up when I feel I can still do a good job and a job I love. Affording the cut in money would be a problem. I already get DLA for my mobility scooter and a couple of taxies. Access to Work pay for me to get to or back from work. I have an electric chair and a computer chair for around the school, but they are pressing for us to now cover all of the children in the classroom. The other FM person who is also a TA is also going in the same direction and I am afraid we are feeling unwanted. Especially with a lot of new, fitter and younger staff!

[onhereagain]

Reasonable Adjustments include extra days Disability Related Sickness Absence all your condtions which are Disabiloity related should be taken into account how much sickness have you had which is not disability related and can anyone really be able to give 100% attendence

[onhereagain]

Sorry cannot find the exact info I wanted to provide you with Sheena

§ Time off and disability:

ú If you treat time off taken by a disabled person due to their disability in exactly the same way as you treat sickness absence taken by a worker who is not disabled, this may result in the disabled person being worse off than another employee.

ú Here is some advice on action you can take to ensure you are treating the disabled employee fairly, within the law, and in a way that gets them back to work as soon as possible:

ê Record the worker’s disability-related time off separately from general sick leave so you are not calculating bonuses or making other pay or employment decisions in a way that may unlawfully discriminate against them.

ê Stay in touch if someone is absent for a long period to find out how they are and to tell them what’s happening at work.

ê Think about a plan for their return to work.

ê Consider reasonable adjustments with them and, if necessary, use expert advice to work out what reasonable adjustments can be made.

ú You do not have to pay sick pay beyond what you normally pay just because the person’s time off is disability-related. But it may be a reasonable adjustment to:

ê Extend their sick pay

ê Offer unpaid ‘disability leave’

ê Allow them to take the extra time off as annual leave.

Disability discrimination

Introduction to disability discrimination

The Equality Act 2010 makes it unlawful to discriminate against someone because of their disability, their perceived disability or because they associate with someone who has a disability. This would, for example, include an able bodied person who cares for a disabled family member.

It is also unlawful to indirectly discriminate against a person because of their disability by imposing a provision, criterion or practice, which puts them at a disadvantage when compared to others.

The Equality Act also requires employers to make reasonable adjustments to remove disadvantages to the disabled individual’s working conditions, whether that is a physical feature or a working practice.

Definition of a “Disability”

The definition of disability covers anyone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of an impairment is long term if it has lasted, or is likely to last at least 12 months or it is likely to last for the rest of the life of the person affected.

Examples of disabilities include diabetes, epilepsy, long term depression, and sleep apnoea. Severe disfigurement is also considered to be disability.

Some conditions automatically constitute disabilities even if they have not got to the stage where they have a substantial effect, these are HIV, Cancer and MS.

Duty to make “Reasonable Adjustments.”

The times when an employer is obliged to consider making reasonable adjustments includes:-

· When recruiting and interviewing for an employee

· When an employer becomes aware of an employee’s disability

· If an employee asks for adjustments to be made

· If an employee is having difficulty with any aspect of their job

· If an employee’s sickness record, length of sickness absence or delay in returning to work while off sick is linked to their disability.

In appropriate cases, reasonable adjustments could include:-

· Making adjustments to the employee’s duties

· Allowing the employee more time to carry out a part of their duties

· Adaptations to their work station, equipment or seating

· Adjustments to their working hours or breaks

· A phased return to work following illness

· Allowing the employee to work from home

· Allowing time off for treatment

· Access to facilities for the control of their condition

· Availability of written material in large print

· Disregarding disability related sickness absences when operating an attendance management programme

· More time to pass their probationary period

· Redeploy the employee to an existing vacancy

Not all these examples would be appropriate in all circumstances, the key question is whether the proposed adjustment is reasonable. What is reasonable, may depend on:

· the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

· The extent to which it is practical for the employer to take the step;

· The financial and other costs which would be incurred

· The extent to which taking it would disrupt any of his activities;

· The extent of the employer’s financial and other resources;

· The availability to him of financial or other assistance

· The nature of the employer’s activities and the size of the undertaking;

A detailed guide for employers on making reasonable adjustments is available from the Equality & Human Rights Commission

The code of Practice gives practical guidance on how to prevent discrimination against disabled people.

Financial assistance may be available to employers through “Access to work” which is available from Job Cenre Plus

Scope of unlawful disability discrimination

The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.

Disability related harassment is also unlawful. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.

It is also unlawful to victimise someone for complaining about disability discrimination.

Pre-employment Health Questionnaires

The Equality Act 2010 prohibits employers asking job candidates questions about their health unless it is to check that the candidate can perform an “intrinsic function” of the job, to see if any adjustments to the recruitment process need to be made, or to monitor their compliance with Equal Opportunities.

Any other questions about a candidate’s health for any other purpose must wait until they have been offered employment.

Enforcing rights

Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. There is no qualifying period of employment, before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the last incident of discrimination.

There is a provision for a potential Claimant to obtain information in relation to a potential claim of discrimination by sending a questionnaire to the employer.

A guide incorporating the questionnaire is produced by the Disability Rights Commission.

Employers are liable for the discriminatory conduct of their employees even if they did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.

Claims can also be brought against the individuals who caused the discrimination, employees might choose to do this because they want the individual to be liable for what they did, if there is a risk that the employer can avoid liability, or if there is a risk of the employer’s business going into liquidation.

Tips for finding a solicitor to deal with a claim of discrimination

[Sarah-Jane in reply to onhereagain]

This is really helpful thank you.

[Sarah-Jane]

Hi everyone, thank you for your help. I now have a union rep who specialises in equality! Yey! Anyway, I have compiled a very comprehensive, huge, file of information - good thing I'm a bit of a hoarder - which now fills a thick folder dating from 2009 to date! I do have a few gaps so I am going to try to get these printed out as I have them via a contact. Thank goodness for friends. Anyway, date set for meeting so getting a date set for Occupational Health and union rep! Crossing fingers for a good result.