Published on 12, July, 2020
Case heading for the Employment Tribunal - refusal to grant a reasonable adjustment
Brief outline: at the end of 2015 I attended a grievance meeting without any support (I was not informed of my right to be supported, nor did I or my employer know at that point that I was Aspergers). I spent most of the meeting 'shutdown' due to high levels of stress and anxiety, my grievance was deemed to have been dealt with.
My reaction at that meeting led to my directly understanding that I was on the autism spectrum/Aspergers. I had cause to inform my employer of this in July 2016 when I was given jargonistic and ambiguous documents to sign for to say that I had read them and understood them. I explained I did not, because I was on the autism spectrum and struggled with such things. My employer accepted this and verbally went through the documents with me and I understood them.
Towards the end of 2016 I found I was the target of a bullying colleague. I requested a meeting and to be supported by my partner, given what had happened in the meeting the year before. This was granted, and my partner was indeed invaluable in understanding what was going on at the meeting (my cognition becomes very poor under stress/anxiety) and speaking for me at those times when I became non-verbal due to the upset and stress of having my employer dismiss my concerns of bullying.
The bullying escalated and I asked for a follow up meeting. My request to be supported by my partner was refused. I then put this request formally as a 'reasonable adjustment'; this was refused on the grounds that the grievance policy did not allow for support except from a work colleague or a union rep. I have been absent from work ever since, and there seems to be little volition on the part of my employer to sort this situation out. We are therefore heading for Employment Tribunal.
Although I have been formally diagnosed now (since June of this year), the preliminary tribunal hearing produced the following statement from my employer: "[We] do not accept that you have a disability within the meaning of the Equality Act 2010"
The union solicitor who is dealing with my case is asking me to write a statement outlining how my condition has an adverse effect on normal day-to-day activities that is substantial and that reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect as stated in the Equality Act 2010 S212 (1).
Frankly at this point I am stuck. I would be very grateful if anyone can offer up how I am to quantify the adverse effects on normal day-to-day activities. The problem is that my behaviour to me seems 'normal'. I am aware that I suffer from anxiety during most forms of social contact, and that under stress my cognition becomes poor and I can become withdrawn and non-verbal.
Your school may also be subject to the Public Sector Equality Duty which states:
(https://www.equalityhumanrights.com/en/corporate-reporting/equality-and-diversity/public-sector-equality-duty)
Thank you so much for your response, what you say has been most helpful. Proving disability feels a bit like a jigsaw puzzle at the moment. I think you have hit on a vital point regarding myself thinking a lot of what I experience is 'trivial'; identifying and understanding that what I perceive as 'trivial' is in fact what a court would consider disabling.
Again another important piece of information you give is to look at my diagnosis report and try to identify those areas which could prove my autism to be 'substantial'. I have a meeting with a support worker from the place where I was diagnosed next Friday and that would seem a good opportunity to go through my diagnosis report, as one of my areas of impairment is understanding such documents.
Yes.
I am a part-time Caretaker in a primary school. The bullying colleague is not the issue in question as regards my disability discrimination case, the refusal of the Headteacher to grant me the reasonable adjustment of support at meetings is. The bullying issue is unresolved and will need to be dealt with once the discrimination issue has been dealt with.
What is of utmost importance in this situation is the requirement in law to prove that my autism has a 'substantial impact on my day-to-day activities' meaning I then will be considered as disabled and thus protected by the Equality Act 2010. It is my understanding that only a court (the Employment Tribunal is a court) can legally decide whether I am disabled or not.
I also had problems in proving my case. Being a union member and a union rep helped me as I have a bit of understanding in how these things work.
The unison guide mentioned by someone else is very good, also look at other conditions since some of these may apply to you as well
This link you may also find useful from the TUC: https://www.tuc.org.uk/sites/default/files/Autism.pdf
Remember you might have to 'egg the pudding' a bit. Just because you have a disability does not automatically mean that you suffer 'substantially' in your home life or employment. Autism should qualify since you have the 'triad of impairments'.
Think why you sought the diagnosis. You must have thought you were having difficulties somewhere. Your social interaction may be poor or misinterpreted. You may not like mixing with other people. You may have over-sensitivity to stimuli - taste, smell, sound - all of which could cause 'substantial' effect. You may not easily understand instructions - misinterpret them -and as a result get into problems at work. This in all probability can be shown to be as a result of your autism having a 'substantial' effect on you.
Have you referred yourself to Access to Work. They can suggest adjustments to help you. They were certainly a great help to me. Your workplace would have a great deal of trouble arguing with their recommendations. And although myself I have not a great deal of faith in Occupational Health Services, they may be able to help you, but ensure you ask to take someone in with you, preferably a trade union representative, or at least someone who will support you who understands how your autism affects you
Effects which you may think 'trivial' yourself are probably far from it. Liking a daily routine which you do not like straying from is not something many employers like. They like 'flexibility' which in many cases of autism is the cause of stress, anxiety and depression. An employer cannot have it all ways. If you fall into this category, it is caused by your autism and has a 'substantial' effect since you cannot perform the duties of the employment without an adjustment being made for it. Do you get over anxious in social situations? Do you appear to be in a world of your own to other people. Do you suffer chronic anxiety and depression? You suggest that you do - and chronic anxiety and depression in themselves are covered under the equality act. Remember Autism has co-morbidity with many other conditions.
What did the report from the person who assessed you say? There are probably many instances in the report which are extremely relevant to 'substantial' effects. The psychologist who assessed me very usefully provided a few pages on how the workplace substantially affected me.
Hope this has all been of some use.
Do you have a formal diagnosis of ASD?
I think that you should state at some point in your argument that it is very common for people with Autism to be thought of as different and to be singled-out for bullying and discrimination without being in any way 'disabled' in terms of the work they are employed to do. You probably don't realise that you are communicating differently (and not in the way others expect) and you may not read people in the way they want but remember - they don't read you correctly either - no one has the rights to or monopoly on correct body language and facial expressions. It is common to be left out of training or be last in the queue so your skills suffer relative to other employees.
As you don't say what you do as work it is difficult to comment specifically but the intermittent lack of speech and ability to communicate is far from trivial.
Thank you, I have now been able to look at and process the information from your links. I have spoken to the helpline and that has proved invaluable, I feel I have a concrete starting point; the person I spoke to was very helpful and is going to summarise what we talked about in an email to me, and include some further links that may be of help.
Thank you, I have now be able to fully check out the links, the Unison document is particularly good.
Thank you for your reply. As with the other two above replies, your links are proving very informative and helpful.
I am sorry to hear of this and do understand what it is like to suffer from discrimination. I would point out some additional links I hope will be of use alongside the information other have provided in reply:
https://www.tuc.org.uk/sites/default/files/Autism.pdf - TUC guidance in Autism that may be useful for lots of issues you are facing;
http://www.lochlaw.co.uk/docs/Workplace-Law-HR-Asperger-Syndrome-07.06.13.pdf
https://www.gov.uk/government/publications/equality-act-guidance - There may be some useful documents here.
Good luck!
Thank you for your reply.
Hi NAS5212,
I think the team who are best equipped to answer your question would be our Autism Helpline, as they can provide you with information and advice in this area. You can call them on 0808 800 4104 (Monday to Thursday 10am to 4pm, Friday 9am to 3pm), although please note that the Helpline is experiencing increasingly high demand, and you may not reach them straight away.
Please see the following link for further information:
http://www.autism.org.uk/services/helplines/main.aspx
You might also want to have a look at the following link:
http://www.autism.org.uk/about/adult-life/work.aspx
It gives information on what the law says the employer's role should be and maybe some of this might be useful in answering the union solicitor's questions?
If you have any further questions, do get back in touch and a moderator or community member will try to help you. Good luck and I hope everything goes well.
Kind regards,
Heather - Mod
You could try contacting the Equality and Human Rights Commission and NAS for advice:https://www.equalityhumanrights.com/enhttp://www.autism.org.uk/get-involved/about-us/contact-us.aspx
UNISON provides a guide, Proving Disability and Reasonable Adjustments, which includes a section on autism:https://www.unison.org.uk/content/uploads/2014/12/TowebProving-disability-and-reasonable-adjustments-ed5-Oct-142.pdf