Published on 12, July, 2020
I have a situation which has required me to take the case to the employment tribunal. My claim includes unfair dismissal, disability discrimination (both direct and indirect), and failure to provide reasonable adjustments. My evidence includes, but is not limited to, rather a lot of extremely offensive emails which came to light as the result of a Subject Access Request.
The employer's solicitors have, of course, claimed that I don't have a disability and that moreover, I didn't disclose it when I first started working for them. When I started working there, I only suspected I had Aspergers and I didn't have a diagnosis yet, but, as the result of poor treatment at work, I developed a stress condition that was a recurrence of a very similar condition I had suffered in the past (more than a year before). I disclosed this condition to my Line Manager (making note of the symptoms which included headaches, sleeplessness, and difficulty with social interaction), who not only proceeded to reveal details of my condition to several of my colleagues without my permission, but also failed to make any adjustments for my illness, e.g. by reducing my unfair workload to the same level as my colleagues, which is all I asked for (and that doesn't even really count as an adjustment anyway).
As I was not familiar with UK disability law at the time, it did not occur to me that my stress condition could be considered a disability in itself. However, as she deals with such matters all the time and it is a big institution, I feel that my Line Manager should have immediately ascertained whether my condition could be considered a disability, in order to both uphold my rights and also to make sure that the employer would not be hauled to the tribunal at a later date. Now I have a diagnosis of ASD but that was disclosed to them well after my trouble started.
After my disclosure (and even before it), some of my colleagues were regularly making fun of my trouble with people skills, personal interaction, etc., and also withholding information I needed in order to do my job because of it, in so many words. This was just in emails, so I shudder to think how much they were saying verbally behind my back. Therefore I was put at a disadvantage because of traits related to my disability. The thing is that, even if they didn't know about my ASD, they were treating me badly because of it. This is the one disability with the symptom that we will automatically be treated badly by others.
So, the first question is whether the employer can be held accountable for harassment based on disability if the people doing the harassing didn't know the name of the particular disability, but were just picking on symptoms of the disability that I had happened to reveal to my Line Manager (some of this occurred before he disclosure and some after, so the disclosure itself didn't seem to have had any effect).
As I said, the stress condition could be considered a disability under the law, but it was caused by my colleagues' poor treatment of me. Therefore the second question is whether those employees can be held accountable for harassment when I had not technically disclosed my ASD previously (i.e. is it enough to say that I did have the underlying ASD condition and call that a disability which would therefore mean that I had always been protected under the Equality Act, or is the disability counted from the diagnosis, even though it is a life-long condition?).
One of my points of confusion now is that, according to what the tribunal may determine (and I have no idea how they determine this), my underlying ASD might not have, by itself, presented symptoms severe enough to cause me substantial impairment in my day to day activities, and therefore it might have been perfectly ok, under UK law, for my colleagues to bully and mistreat me because of it. But then when they did so, they caused the stress condition, which had much more severe symptoms and exacerbated my ASD symptoms as well, meaning that I was then definitely substantially impaired in my daily activity. The third question is can my employer say that even that doesn't count as a disability because when the stress condition recurred (and therefore became a disability, given that it could now be considered "long term"), my colleagues had already been harassing me, so none of their harassment actually counts because I didn't "start out" with a protected characteristic?
Additionally, once I officially disclosed my ASD (officially as a disability, and not just informally to my Line Manager as I had before), though it wasn't yet officially diagnosed at the time, all of a sudden the employer was asking me about reasonable adjustments all the time. They wouldn't provide them, of course, but just offer them and promise them and then deny them at the last minute, in meetings, for example. Anyway, they never told me that they didn't accept that I had a disability at the time I disclosed my ASD, but all of a suddent the solicitors are making that claim. Is there some sort of law about this? Weren't they obligated to communicate their official stance on my disability status so that I could have provided further information or whatever they needed? Is it really acceptable, under the law, to appear to accept the disability disclosure, and then suddenly do a complete 180 when it's convenient for them?
Has anyone had to prove disability to a tribunal and were successful? There are some posts here about it, but no success stories, unfortunately, so I don't know how people got on.
For several months, I have been ill because of the treatment I received at work, and I have been unable to even leave my home without much anxiety. Therefore I have also been without any income for this time. Applying for benefits is a nightmare. I could also use some advice from people who have successfully completed the ESA50. I find the form offensive, to be honest, but I have to do it in order to get anything.
Sorry for the long post and thanks in advance for any replies.
With regards to the duty to make reasonable adjustments under the Equality Act, this applies if:
1) You’re disadvantaged by something because of your disability,2) It’s reasonable to make the changes in order to avoid the disadvantage, 3) The employer knows, or should reasonably be expected to know, about your disability and the disadvantage suffered because of it.
Therefore, given 3), you do not have to specifically inform an employer of a disability or have a diagnosis of one in order to claim disability discrimination. Though it is harder to prove that the employer should have reasonably expected to know about your disability, you may have some evidence of this in records of communications.
As for a disability caused by the employer, you will have to prove it meets the definition of a disability under the Equality Act, and then it will be accepted that the employer should have made adjustments for said disability from the time it is proved to have started (usually worked out from medical evidence).
Whilst I didn’t have my full Tribunal hearing (I settled part way though), all three of my disabilities were proved and ultimately accepted by my employer, though they had originally tried to deny two of them. This was done through disclosure of medical documents, a disability impact statement prepared by myself and further and better particulars provided by my solicitor.
I am concerned that you say that those that have provided you legal advice have been vague about the strength of your case - solicitors should provide clear merits assessments, which are updated as the case progresses. They usually give percentage prospects of success which always allow for the fact that there is no certainty in any legal case. Have you not had one of these, or are you not using a solicitor?
Keep a diary of the symptoms you are suffering as a result of their treatment, and also a record of your attempts to mitigate loss e.g. efforts to seek work/benefits or records of why you can’t do so including medical evidence.
Best of luck, if I can be of further assistance please let me know.
The burden of proof at a tribunal is the same as a civil court, ie, the balance of probabilities.
If you collect the evidence that you are autistic, (a report from your doctor, a report from the psychologist/psychiatrist that explains how you are affected by autism) and a list of ways you are affected by autism in everyday life. There are a lot of examples of these on lots of posts on this forum. Proof of disability is 'negative' in the fact it is concentrated on the things you cannot do or which you have difficulty with rather than things you can. And you should not really have too much trouble in showing the ways you have trouble with 'normal everyday activities'. Such things as lack socialising, communicating, misunderstanding and being misunderstood, .all have a
Generally employers try to shift the blame for anything towards the employee. And they have their own solicitors to help them.
Employment Law and Tribunals and ACAS codes of practice depend on 'reasonableness'. What would a reasonable employer do? And you need copies of your former employers grievance policy, their bullying and harassment policy, their Equal Opportunities Policy, all at the time of when you had the trouble, and go through them very very thoroughly. More cases are won at employment tribunals because the employer failed to follow its own policies than you would think.
Although concerned with disability generally and not autism, the ACAS website has lots of information about disability and disability in the workplace:
Acas disability in the workplace links
Good luck with everything.
A very good point. A web chat option would prove very useful.
How about the autistic people who hate the phones and do everything they can to avoid them?
DragonCat16 said:The union won't help me because I wasn't already a member at the time of the incidents (so you should probably consider that before advising people to join a union when they are already having trouble).
Sorry to hear that; my limited experience has been different. My advice that anyone in employment should join a union would still stand: you never know what might happen and, whilst unions are not perfect, they are useful.
DragonCat16 said:even those who have given me legal advice have been very vague about exactly how strong my case needs to be in order to win.
That may well be because an exact answer is not possible.
I would hope that at one of the links I provided will be of help, along with the specific information about contacting NAS provided by Heather - Mod.
Dear NAS24456,
Caretwo has already shared some really useful links but if you would like any further information you may like to contact our Autism Helpline team who may be able to help you. They can provide you with information and advice on this issue. You can call them on 0808 800 4104 (Monday to Thursday 10am to 4pm, Friday 9am to 3pm).Please note that the Helpline is experiencing a high volume of calls and it may take a couple of attempts before you get through to speak to an advisor.
Please see the following link for further information:
http://www.autism.org.uk/services/helplines/main.aspx
Wishing you all the best,
Heather - Mod
Thanks for the replies. I have already gone through the grievance process which resulted in absolutely nothing. The union won't help me because I wasn't already a member at the time of the incidents (so you should probably consider that before advising people to join a union when they are already having trouble). I was dismissed several months ago, so any advice assuming I am still in the work situation, though possibly useful for others in an unpleasant work situation at present, won't help me now. I have already submitted my claim to the tribunal, and in their response, my former employer's solicitors are saying I don't have a disability and they never believed that I did, even though they had kept asking me whether I needed reasonable adjustments.
I have been asked for an impact statement and I need to know how to best write it in order to strengthen my case. I am looking for specific advice and anecdotes, etc. because even those who have given me legal advice have been very vague about exactly how strong my case needs to be in order to win.
I hope that clarifies things.
Thanks.
If you belong to a union, contact the appropriate rep. If not, join the union.
You could try contacting the Equality and Human Rights Commission and NAS for advice: https://www.equalityhumanrights.com/en http://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
Further links which may be of help are: https://www.citizensadvice.org.uk/ https://www.gov.uk/browse/disabilities http://www.autism.org.uk/about/adult-life/work.aspx (this includes a section on bullying)
NAS also has a page about managing autistic employees: http://www.autism.org.uk/managing
I also recommend downloading the TUC's document Autism in the Workplace (https://www.tuc.org.uk/sites/default/files/Autism.pdf).
Have you already applied to the tribunal (via Early Concilliation)?
Unfortunately there are strict deadlines which are unlikely to be varied. That is three months from the event. True, if there are continuing separate events this will give you three months from one of the events you wish to mention.
That said, first of all you will have to go through the grievance procedure. This does not stop the clock of the three months (less one day). So if the grievance has not settled the matter, you can put in the Early Conciliation form during this time, and in accordance with the time limits above. After one month if it is not settled, you will be issued with a certificate which will give you one month to apply to a tribunal, again very strict.
If your grievance was upheld, you can go to the industrial tribunal to claim compensation for the effects of stress and a monetary award will be given which can be anything from about £100 to £5000 or more for the stress alone, there is no upper limit in disability discrimination cases.
Going on to your disability. Although a formal diagnosis is not a requirement, you would find it easier to claim on the basis of autism if you had one. That said, stress/anxiety/depression can be argued under the equality act as a disability. To be classed as such it must have lasted twelve months or be expected to last twelve months. This is where recurring stress may be a factor to consider. Have you had bouts of anxiety /drepression/ stress in the past for which you sought medical treatment? This could help you. And I would always advise anyone who is asked by a manager if they are stressed to say yes. It will definitely help should there be problems later.Th
Have you been referred to Occupational Health? Although most of my experience with Occupational Health is not good they could help you by suggesting what adjustments should be made for whatever disability someone may have.
The equality act says that your disability/impairment must have a substantial effect on your normal everyday life. This means you have to be particularly negative about things. Autism is not that difficult to probe that it has a substantial effect on your everyday life - social misunderstanding, meltdowns, social anxiety, being misunderstood, taking things literally, information processing delay, all have a substantial effect on everyday life. Stress/anxiety/depression will have effects such as losing enthusiasm for things, getting easlity upset, running away from a situation, poor performance at work, so it is not too difficult to prove the effect
Regarding 'not knowing' of a disability which later is discovered, in my opinion they would have to then revisit any sanctions they have applied. So if you were given a warning about your performance, they would have to retrospectively reconsider that. But you could not use this in any grievance procedure that they should at the time have made allowances (since they did not know). You could use a grievance to say that once they found out about your disability they refused to revisit the event.
Even if you are not covered under the equality act (and with a proper diagnosis it should be easy enough to prove you are) your company should have policies for stress, bullying and harassment, and equality. Harrassment is when someone is subject to behaviour because of their protected characteristic, bullying is more or less the same as harassment but when there is no protected characteristic. And someone making remarks or presenting unwanted behaviour to someone else is bullying in any sense of the word so the behaviour should be addressed whether or not you are 'disabled'. You need to be au fait with these policies since an employer not following policies gives you a good case.
Keep a diary of events, that is very important. You need dates. Keep emails, they will be dated as proof, and even go as far as writing your feelings on an email when things occur and emailing yourself at your private email address. Remember to use the 'confidential' button on the email programme. Get a hard back book, and when something happens take notes, dated in the book and rule off after each event to show the continuity. A loose leaf book will be harder to show continuity since you could add pages to it.
Take my advice and join a trade union.. Should grievances not be properly addressed and you do end up putting a case before a tribunal, the union solicitors will get involved and give you advice and may even represent you (provided you have a reasonable chance of success with their help). Union membership fees are well worth the subscription for employment disputes you may have.
I myself am a trade union representative and also diagnosed as autistic.