Returning to Work - Legal Advice on your Rights

Dear all

As some of you will know I've been faced with some challenges getting back to my job. I'm in the lucky position of having worked in equality and disability for years and have good contacts. By the most incredible chance we have also had a change of senior management just at the time I'm fighting my case so it looks as though my 10 month battle will see progress. For those of you considering going back to work I thought it would be helpful to post up information recently provided to me by a friend who has spent some considerable personal time researching the issues for me. I'm sharing this with you as it was a gift and I'm sure that many of you are like me and not in a position to pay for such detailed legal advice.

The Equality Act 2010 (EA 10) has consolidated old legislation such as the Disability Discrimination Act 1995. The Act is also supported by the Disability Regulations 2010, the Code of Practice on Employment and also guidance.

People with cancer have a protected characteristic under section 4 of EA 10. Disability is defined under section 6. Under Schedule 1, para 6 of EA 2010, a person with cancer is automatically considered legally disabled from the time of diagnosis.

There are different forms of discrimination stated in the Act:

- Direct Discrimination

- Failure to make reasonable adjustments

- Discrimination arising from disability

- Indirect discrimination

- Harassment

- Victimisation

Direct Discrimination - Section 13:

This means that you have received less favourable treatment because of your disability, compared to someone who does not have a disability. The intention of the employer is largely irrelevant and it does not matter if the employer argues that they thought it was in your best interests.

To prove direct discrimination you need a 'comparator' - so a person who does not have the disability but who has the same skills or abilities as the disabled person.

Failure to make reasonable adjustments - Sections 20 and 21:

This is a new kind of discrimination based on disability. Basically the employer discriminates against a disabled person if he fails (without justification) to make reasonable adjustments. There are three different requirements but probably the most relevant is section 20(3) - where a provision, criterion or practice of the employer puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. This section covers the way things are done, such as changing a practice in the workplace. The code of practice states that section 20(3) should be construed widely and include both formal and informal policies, rules, one-off decisions and actions etc. It applies to contractual arrangements and working conditions.

Reasonable adjustments could include, for example, allowing a gradual return to work after extended leave due to the disability.

The onus is on the employer to show that he has made reasonable adjustments once it is shown that the disabled person has been placed at a substantial disadvantage compared to someone who does not have the disability. It is an objective test which can look at the cost of adjustments and the extent of any disruption. So basically a cost-benefit balancing act.

With disability, an employer is often obliged to discriminate positively in favour of a disabled person.

In the case of Archibald v Fife Council (although under the old Disability Discrimination Act 1995), the decision in this case made it clear that employers need to consult the employee before making decisions about reasonable adjustments.

Discrimination arising from disability - Section 15:

This means you are treated unfavourably because of something arising from or related to the disability. The only defence, so to speak, is that the employer shows that this treatment is a proportionate means of achieving a legitimate aim. Something related to disability could be taking time off to attend hospital appointments. With this section, you do not need to compare the treatment against someone who does not have a disability.

Indirect discrimination - Section 19:

This is another new provision relating to disability. It occurs when a policy or rule that applies to everyone in the same way has a particular disadvantage for people with a disability. It will be discrimination unless the employer can objectively justify it. An example of indirect discrimination would be an employer looking at the amount of sick leave people have taken to determine redundancies. This would obviously be a disadvantage for disabled people.

Harrassment - Section 26:

This relates to unwanted conduct or behaviour related to a disability which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person.

Victimisation - Section 27:

This occurs when a disabled person is treated badly because they have made a complaint about the discrimination they have suffered.

Look for the macmillan publication, The Equality Act 2010 and Cancer - How it Affects You - A Guide for Employers) which is useful for examples of certain types of discrimination.

There is also a video illustrating how appallingly employers can be at hhttp://www.macmillan.org.uk/Cancerinformation/Livingwithandaftercancer/Workandcancer/Supportforemployees/SupportForEmployees.aspx

The ACAS code useful as a tribunal will look at whether the employer and employee have followed the code. Please see this link: acas.org.uk/index.aspx?arti...

If a disabled person does need to pursue a claim there is no eligibility criteria as such but they would need to submit a claim form within 3 months of the last act of discrimination on a form ET1. Compensation for disability discrimination is unlimited and is not capped.

18 Replies

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  • What a very good blog cheers love x G x :-)

  • Excellent and such a help for those returning to work. I am not in that position but my sister-in-law with breast cancer is young and may well need help so shall pass on this very useful bog to her.

    Hope you are continuing to dowell in health and with your job.

    Love Suex

  • Thanks, alot of people who are diagnosed with cancer are not aware of how well we are protected in work. I myself was not aware that I am now classed as disabled until I chatted with the ladies on this site, no one else has informed me of this! Very useful information Annie.

    Jane x

  • Dear Jane,

    I think it's important to understand our 'protected characteristics' due to having a disability. Unfortunately whilst we have comprehensive rights in the workplace they are frequently ignored and disabled people do not get the provision or reasonable adjustment they need.

    I only wish it wasn't necessary for anyone to go through any sort of confrontation in order to be treated equitably at work in comparison to people without disabilities. It's handy to have the law at your fingertips and power to your elbow if your employers know you are aware of your rights.

    It's a costly business to an employer who does transgress the rules. Sadly it all too often happens because disabled people don't have the energy to fight.

    btw Disability shouldn't be confused with 'mobility' so don't go parking in those Mobility Parking Spaces without a Blue badge will you!

    lol Annie xxx

  • I totally agree, my manager would get a serious wrap over the knuckles if she was accused of discrimination because its her job to manage a service for disabled people! He He my daughter (10) was telling me I could park in those spaces and I could get a mobility scooter for her to play on (it doesnt bare thinking about!).

  • Now this is really funny - my line manager is Head of Widening Access. This is about ensuring that disadvantaged groups such as disabled people have equal access to university. It would seem his view of Widening Access and Equality doesn't extend to his own disabled member of staff. ha ha I could do with your organisation giving my organisation a serious rap over the knuckles.

    There was some confusion about Blue Badge Status at the university. I had to explain the difference between disability and mobility. I'd imagine my grand-daughters would love to play on a mobility scooter. I'll bear this in mind as one of the positives should my path go down that route. xxx

  • Hi

    Thank you for this . It is very interesting and informative and i am sure will be of benefit to many on this site

    Ally

  • Dear Annie,

    Very useful information, and thanks for sharing it.

    I just need to add (and you know how devastating the experience I had was), that - unless you have endless resources, and are prepared to risk them paying solicitors, these things are very hard to enforce. I (and a colleague with another 'disability') was in a situation where our employer had made -and published in writing without our permission- an agreement with us, then reneged upon it. It was obvious that a 'bloodless coup' had taken place (we were the MD, and deputy), but there was more pressure on us to agree to a settlement that would not bankrupt the organisation, than on them to do the correct thing. They had changed records to cover their backs and there was nothing we could do as we were not in a situation to prove it (whilst dealing with severe illness). All the legality in the world doesn't make fighting a small employer hell-bent on cheating you any easier or (in my experience) fairer. I imagine it might be more effective in large organisations where people are less personally involved.

    Isadora.

  • Dear Isadora,

    I so agree with your comments,and think perhaps it is the smaller employer that finds an easier way to twist things to their advantage.....what with the employee having mixed loyalties and being not fit or well enough (lacking the energy) to fight... I think changing records is more common than we realise,a very valid comment, thank you.

  • Yes, Isadora's experience was absolutely ghastly. It's worth checking your household insurance policy if you do get into shtuk with your employer. It may include cover for Legal Fees associated with Employment Disputes. If so .... let 'em have it! I must be creating a terrible impression of myself. It's just I've worked in disability for 20 years and know from observation how disabled people are treated. I've now graduated to centre stage. xxx

  • Good for you!!

    I XX

  • An excellent blog, I workd as a T U regional official and then as an Employment rights specialist for CAB. The only caveat I have is that, while awards are not capped in theory, in fact the average awards in equality cases, up to 3 years ago, were around 4 1/2 thousand pounds! It is always a good idea to have an advocate too, which is where TU membership is an advantage. In a lifetime as an activist and, later, paid official the one person I never tried to represent was me. As they say "a lawyer who represents themselves has a fool for a client"! I did a lot of repesenting in internal disciplinaries and grievances and at Employment Tribunals.

    Margaret

  • Dear Margaret, the EA10 makes provision for 'hurt' as a result of having a disability. This can be because of name-calling, or by causing an employee excessive hurt through the way they are treated. There is no cap to an award a court may impose for this. Hope this is helpful to clarify the situation. xx

  • I know this but the actual awards are often not very high! I am a bit out of date of course but the average reflects some very high awards cnterbalanced by some very low ones.

    Margaret!

  • Dear Annie

    This is such a useful blog..and although I agree with Isadora's comment ..I feel your blog is so well written and informative, that I am sure a lot of people will benefit from knowing their rights and how to go about it. Well done and thank you... Love x G x :-)

  • Well, I wish I could reassure everyone that all these laws and cases actually help the individual when faced with discrimination or unjust treatment. Unfortunately the only place the law can be imposed on a recalcitrant employer is in the Court and for most disabled people this is very expensive, and emotionally and/or physically debilitating. This is why there remains so much bad practice.

    I'll most certainly blog when I have a positive outcome. There is now no other solution.

    lol I like a cause and at least it takes my mind off worrying about the cancer!!!!

    lots of love to you all. xx Annie

  • Hi Annie,

    I finished work last year...there are other ways in getting rid of people...I couldn't stand anymore... so I walked out (burnt my bridges) even though I loved my job.. I felt life was too short for hassle..and I knew deep down that I had a recurrence, It was just a matter of time that my oncologist recognised this as well.....I once went to a tribunal with a friend.. I thought it was terible even though this friend won her dispute..I said then I would never do it, as it was so upsetting,but I think employers rely on that..I wasn't sick then and neither was she, but such an awful experience..love x G x :-)

  • Thanks Annie, its really useful information for me to go armed with into work. Very grateful to you for putting the specific parts together that relate to us.

    Sue

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