Discrimination, temporarily gone

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  • That company says that if you need extra help they might arrange it for you and pass the bill on to you.

    or they might send you home and charge you the expenses.  I think their argument is that tour guides are not carers.

  • I think they're not allowed to charge you for making reasonable adjustments. I know that employers aren't allowed to charge for that so it makes sense that service providers also can't charge for it. Also, if they promise something beforehand they have to provide it. They can refuse beforehand to provide certain adjustments but they have to justify that in terms of fulfilling a legitimate aim.

  • Hi ,

    I'm sorry to hear that you haven't been able to get through to our helpline team. It may be worth sending them a message, you can do so via their webform:

    https://www.autism.org.uk/services/helplines/main/questions.aspx

    Best wishes,

    Nellie-Mod

  • Holidays  As I warned a Holiday Company I get lost easily they told me to get a Doctor's letter and they would expect me to keep up with the group myself although I had  been twice with them before and the guides were helpful.  I rang up a help line and by the way I cannot get through to the NAS help line.  I was told that if I sued the Holiday Company  I would probably not win on reasonable adjustments as the guides are not carers.  I think the Equality Act is largely a waste of time as providers can just get round it.  In Spain the guide in Seville for example asked the others from our boat trip to escort me to the meeting point.  She took good care of me as said that she got her skills in dealing with me as she had children.  The guide in Austria helped me by keeping answering his mobile when I lost the group but he said that the company cannot give me extra help as we were leaving.  Since then the company has put in their rules that you should be mentally and physically well enough to do the holiday and if you need extra help they might get it for you and charge you for it or they might send you home and charge you for the expenses.  They also say that making reasonable adjustments might not include pushing wheel chairs or providing supervision.   What is the point of the EQUALITY ACT?

  • Not yet unfortunately. Case delayed...

  • It would be very useful to many of us to know how this case went. Do you have an update for us?

  • NAS36609 - I feel my previous post was not clear: I indeed concur that autism as a disability has to be either proved (if an employer is contesting this) or conceded by the employer. In my case my employer first contested my autism as a disability but then conceded that my autism is disability and therefore covered by the Eq Act.

    My understanding is that there are very few disabilities that are automatically covered by the Eq Act; in the case of autism my understanding is that it falls into the category that raises the question: does it have a substantial adverse effect on your ability to carry out normal day-to-day activities and is it long-term. The latter means that ultimately autism as a disability in an individual can be contested in court.

    Most employers automatically concede that an autistic employee is disabled and therefore covered by the Eq Act. Indeed it would seem foolish for an employer to do otherwise. The advice from my solicitor was that it would be extremely unlikely for an ET to rule that an autistic claimant is not disabled, in the sense that the law is not 100% but in this case is 99.9999%.

    To reflect that autism is not automatically considered a disability by the law, my Occupational Health Assessment Report makes the following statement:

    "Advice on the applicability of the Equality Act 2010
    Although this is ultimately a legal determination, on the basis of the impairments that I have noted, and the substantial impact these have on his activities of daily living, and that they are long-term, my advice is that the disability provisions of the Act are likely to apply."

    My main point in my previous post was to highlight my opinion that an employer contesting an employees autism as a disability is doing so as an adversarial tactic. I consider that such tactics are used to put pressure on the Claimant to settle as early as possible.

  • I understand what you are saying, but I personally think that your last paragraph is incorrect - as far as the law is concerned, Autism is a disability (please refer to the Equality Act 2010 definition of disability) whether proven in a court or not. I note your disability wasn’t proven in Tribunal and neither were mine, so saying it has to be doesn’t make any sense... Pehaps you meant to say that it has to be proved or conceded in order to get any reasonable adjustments from your employer? That’s not actually true though as per the law, although your employer could certainly argue it.

    It’s just that in most cases, as far as your employer or their solicitors are concerned, they will invariably argue that your Autism (or any other condition you say meets the definition) isn’t a disability initially because it is a form of legal defence. It doesn’t necessarily mean anything though, or that this is what the law states.

  • In my case I requested a reasonable adjustment from my employer that was refused. For the next ten months the employer (presumably on advice of their solicitor) first of all demanded to know to what extent I was autistic - the reply from my autism assessment service to that was to state that diagnosis is either a yes or no situation, they do not evaluate beyond that.

    My employer then contended that my autism was not a disability within the meaning of the Equality Act 2010. My solicitor told me that this stance is indeed common practice and that he would be very surprised if my employer did not concede this point prior to Employment Tribunal, as he said it would reflect badly on them to contest this when it would almost certainly be determined by the ET that my autism is a disability. Indeed, three weeks before the ET, the employer dropped this contention.

    My case never reached the ET, as a few days before the ET hearing, I was presented with a settlement that I had the choice of accepting or refusing: my solicitor informed me that should I choose the latter, then my union would withdraw their support as they determined that the settlement was 'fair'. As much as I would have liked to have my day in court, I too determined the settlement to be good enough.

    Interestingly the draft proposal of the settlement from my employer did not accept that my autism was life-long. This was eventually corrected as my solicitor put forward the argument that currently there is no known cure for autism.

    I hope the above is useful in understanding that as far as the law is concerned, autism is not a disability unless it has been proved in a court to be so. I can only conclude that employers and their solicitors use this fact to scare off the autistic claimant, but when push comes to shove, they are unlikely to take such a contention all the way to an ET hearing.

  • Just an extra bit of advice regarding the workplace assessment - if your employer says they can’t afford it then you could offer to pay for it yourself (if you can), or you could advise them they can get help with the cost through Access to Work.

    Best of luck, I really do hope things improve for you. Do let me know if I can be of any further assistance.

  • Thank you very much for all the advice.

    I think I have to do all of them at the same time.

    1. Putting some more pressure on the for adjustments e.g. put to them in writing what you require, set out their legal requirements, and ask for them to respond in writing telling me what adjustments they make.

    2. Looking for another job whilst still working.

    3. Trying to set up my self-employment.

    4. Looking at option to receive benefits.

    I am going to ask for a workplace assessment.

  • The Tribunal did stay my claim, but I’m not sure why they bothered given their recent ruling that my claim can’t be reinstated due to a settlement agreement existing.

  • But then again, had not the tribunal paused it to start with? That means it was promised to be taken up again if something went wrong with the agreement, right? 

  • Ok, so in simple words: They claim for you to pay because you wanted to reinstate an old claim, but it was denied. So the fact that the tribunal denied it, makes it ok for the respondents to claim money from you?

  • There is no way I can defend this sort of matter myself - I firstly do not have the time, secondly I’m not currently well enough, and thirdly the matter is extremely legally complex due to a number of nuances. If it was a case of presenting the original claims that would be fine, but it’s not and far more is to be considered which is demonstrated by the fact that both parties instructed barristers in this matter - it’s too much for even experienced solicitors.

    If an agreement is breached you’re supposed to claim breach of contract in the civil courts, but I instead asked for reinstatement of my claim in the Employment Tribunals (because I either wanted my claims to go through a full hearing or to get exactly what was agreed in the settlement, neither of which I would get through a breach of contract claim).

    My claim wasn’t reinstated, the Tribunal struck it out because of the existence of the settlement agreement (they don’t care it has been breached - that’s a civil court matter). As such, my employer is arguing that I should have to pay their costs in defending my application for reinstatement (which isn’t all the costs they have incurred throughout the case), and they have a good argument given the judgement going in their favour.

  • Maybe you can defend it by yourself from now? The struggling should be over, I mean finding proof and so. If you represent yourself you wont have more costs... 

    But I can't really make out what you wrote up there as the reason for their claim. You reinstated your claim, because they refused a part of the settlement. And because you reinstated it, then you have suddenly done something wrong? What can that possibly be?

  • I see exactly what you mean Mandy. Though to be fair, the terms of my agreement are very clear (even the Employment Tribunal Judge said so), it’s just that my former employer is being an idiot and pretending they aren’t.

    They are making the application on the basis that my claim had no reasonable prospect of success in light of the settlement agreement. Basically this has nothing to do with who breached the agreement (that’s a civil court matter), but because I asked the Employment Tribunal to reinstate my claim due to the refusal of my employer to comply with the agreement. That action they are arguing had no reasonable prospects of success, and in light of the recent judgement they’ve got a good argument.

    Sadly I’m not sure anyone can really help me in this situation. As I say, if they’re awarded the money then I simply can’t live with that, and I don’t see what could change that. It is however greatly helpful to me to be able to discuss the matter on here (as the rest of the time I deal with it all on my own, and it’s a huge burden for one person to carry), so thank you so much for taking the time listen to me and to respond, though I have rather harped on at you...

    As the application was only submitted on Monday I’ve yet to be advised by my solicitors as to what will happen next and how fast. I assume there will be arguments submitted by both sides and a hearing to determine the issue, which means more legal costs to pay! I’ll have to defend it though, so there’s not much choice about incurring more costs.

  • Tell me again, please. What is it they think they can claim money from you for?  

  • What can I do to make you happier in this surrealistic situation? How long before you know if their claim of money will be supported by the tribunal?

  • Well, my employer’s solicitors have now made an application to the Employment Tribunal for their costs from February 2017 to be awarded against me...a whole £17,895.10 in costs!

    That’s me screwed if they get it - I’m not working for the rest of my life to pay back those who did me so much harm. I can’t afford it anyway on top of the £40,000 plus I’ve spent on legal costs up to now (with nothing in return).