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It would help to have more information about this. In which city will the hearing be held, for example?
This is hugely relevant for me since I am on my way to trying to prove in the Employment Tribunal that I'm disabled and that my employer should have known about it.
I find it amazing that I had to endure several colleagues punishing me and making fun of me because of my autistic traits, and now the employer is saying that I should not be protected because they claim that I'm not disabled, which would essentially make all the mistreatment ok, even though they mistreated me specifically because of my condition.
I just wish that they would add neurodiversity to the list of protected characteristics, instead of including it within disability, thereby failing to protect people on the spectrum who don't quite fit the definition of disabled. The House of Lords put out a report suggesting this: https://publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf (paragraph 57)
There's a reason why people on the spectrum have the largest unemployment rate out of all disabled people. Something needs to be done about all the bullying and unfair treatment. Employers shouldn't be allowed to seek the easy way out by claiming someone isn't disabled.
Please post here about the progress of the hearing. I'm sure I'm not the only one who will follow it with great interest.
Employers will always try and claim that you aren’t disabled in this sort of scenario, because if it is proved it immediately makes a claim of disability discrimination unviable.
As far as I can tell though, given the very traits that are required for a diagnosis of Autism, anyone who is autistic would meet the criteria for a disability under the Equality Act. I certainly had no problem proving to the Employment Tribunal my Asperger’s, depression and anxiety were all disabilities, despite my employer initially arguing that the latter two were not. Therefore, could you possibly explain who on the spectrum you think don’t quite fit the current definition of disability (I just want to understand and help you if I can)?
Thanks for the reply.
I have no idea about the basis for the employer's claim of no disability. Apparently, at this point, the burden of proof is on me and they had me send in an impact statement, in which I claimed two disabilities, Aspergers and a stress-related condition (more severe than just the Aspergers alone) caused by a combination of the Aspergers and the way other people at work treated me on a daily basis. I submitted a statement of several pages describing how the Aspergers makes my life difficult.
I haven't heard back from them yet, and, like you, I am very curious as to how they are going to try to say I'm not disabled. They are apparently even claiming that Aspergers is not a disability, since they already know about my diagnosis.
Because they have said that I'm not disabled, one of my arguments is that even though I didn't disclose my disability right at the beginning of my employment (I hadn't even been diagnosed by that time), they didn't take any notice when I did disclose my disability. They failed to provide reasonable adjustments multiple times (even when they asked me beforehand what reasonable adjustments I requested, and then promised me that they would do what I asked), and now they are saying they never believed I was disabled anyway, so they had no obligation to provide reasonable adjustments. Once I disclosed my disablity, the perception should have been that I was disabled, and the way they treated me should reflected my status as a person with a protected characteristic. They are not medical doctors, and had no expertise whatsoever to make a claim regarding whether I was disabled or not, so I should have been protected as someone perceived to be disabled, until it was proved otherwise.
The funny thing is that their response is full of hypotheticals: "we don't believe there is a disability, but if the tribunal finds that there is a disability, it doesn't count because the employee didn't disclose it on the employment application form, but if the tribunal does find that it was disclosed, we deny everything the employee claims anyway".
If they think they didn't do anything wrong, then why are they so adamant to claim there was no disability, especially when the best scenario for them would be to say that they acknowledge the disability and prove that they did everything right with regard to reasonable adjustments, etc.? It seems as if they are admitting that all did not go properly when their first reaction is to claim no disability, especially when their behaviour after I disclosed the disability suggested very strongly that they did belive there was a disability.
I just think it's disgusting that 1) what they put me through would be ok if they can convince the judge that I have no disability, and 2) they can trick someone into thinking that they acknowledge the disability, and promise reasonable adjustments and then withdraw them at the last minute, and that would be ok as long as they can convince the judge that I have no disability. I think the laws need to be changed so that bullying of any kind is illegal. Nobody should be treated the way they treated me, disabled or not.
Have you read the response submitted by the employer in full? That should detail their basis for claiming you are not disabled.
My disability impact statement was only 1 page long and covered both my depression and anxiety (as those were the disputed disabilities), but that was enough alongside medical evidence to prove disability. If you prove that though, you will of course still have to prove that the employer knew or should have known about your disabilities.
Your employer won’t get far claiming Asperger’s isn’t a disability - the Employment Tribunal is fully aware that it is, to the extent that they issued specific guidance regarding adjusting for autism in hearings to the parties in my case just prior to the hearing (found at this link: http://www.theadvocatesgateway.org/images/toolkits/3-planning-to-question-someone-with-an-autism-spectrum-disorder-including-asperger-syndrome-2016.pdf).
The part of their response you have quoted is purely their legal argument to try and get themselves out of the claims - don’t worry too much about this. You don’t have to disclose your disability on any forms at work at any time - I didn’t disclose my Asperger’s until a year into my employment - but this may affect the date you are able to argue your employer had knowledge of your disability from.
I agree wholeheartedly with your conclusion, but often although employers try certain arguments, the judges do see through them, so it’s not often that an employer in the circumstances you describe actually does succeed in arguing that the employee had no disability.
I myself have other major concerns regarding the Employment Tribunal system, and it’s ability to be manipulated by employers, especially those with lots of money. I’m still fighting on that front, but then I did find myself in a most unfortunate situation regarding my case, which my solicitor had never seen in his 25 years practising employment law...
That last paragraf of yours makes me want to read more... please?
Oh, it would be extremely long for me to explain the whole matter, so what do you want to know about most - how the system can be manipulated, or my unfortunate situation? (Though the two do overlap somewhat given that I only know about the flaws in the system through my own experiences with it).
Would you please, tell the big picture to start with (a few sentences) then I can specify?
I will try (can’t be done in a few sentences though):
I brought claims of unfair dismissal and disability discrimination against my former employer. We engaged in mediation early on but the case wasn’t settled. My employer failed to properly comply with Tribunal Orders on numerous occasions from that point onwards, continuously harassed me to settle and threatened me with an application for costs against me.
The matter proceeded to hearing, which was listed for 10 days. Due to my mother’s health at the time (not my own wishes), I settled on the second day of the hearing and my claims were stayed (as opposed to being withdrawn/dismissed) to allow time for two parts of the settlement agreement to be complied with.
Due to disagreement regarding a clause in the settlement agreement, the terms were not complied with by my employer. Both parties engaged in discussions for months to try and resolve the matter, but ultimately my employer refused to do what they had originally agreed to under any circumstances.
I was advised that a claim for breach of contract would not get compliance with the terms of the agreement because specific performance couldn’t be ordered. As such, I didn’t do that and instead sought to reinstate my live claim before the Tribunal. The Tribunal weren’t initially sure they had jurisdiction to hear such an application, though they did latterly decide following a hearing that they did.
I recently had a hearing regarding the matter, but I do not have a judgement yet (it was reserved). If my claims are dismissed, then in effect despite a settlement agreement I am left with nothing and worse, the possibility of a costs award against me, despite having good prospects for my claims throughout. I have also already spent more money than the agreed settlement sum on legal costs, so there’s no point demanding the money and running! Besides, I never wanted their money...
In general with my case, the whole system appears to have benefited the employer and punished myself, though it is my employer who broke the law. That doesn’t seem right to me at all.
I am so sorry to hear your story. I have been worried that something like it can happen.
Paying their legal expenses should only happen if you did not have a good case to start with.