Discrimination, temporarily gone

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.

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.

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.

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.