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.
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.
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.