Employer still won't accept I am disabled in a Tribunal case

This would apply for example, if someone kept tripping over things and falling over and this had been noted.  For mental impairments, someone who had periods of, for example, anxiety and depression for an extended period would be showing signs of a disability under the act.

It might be worthwhile bringing this up if not previously disclosed.  Autism is a lifelong condition, so once you have disclosed you may be able to argue that past issues were caused by your impairment even if not disclosed at the time, and have past warnings, sanctions, etc expunged.

This is why I I would always advise anyone to join a union.  A good rep, especially a trained equality rep should be able to support you and point you in the right direction.  Unfortunately these days many workplaces have become de-unionised and this encourages poor employment practices by employers.

have you seen this?

“It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.”

Best of luck! One thing I'd like to say is, you aren't working there anymore, the day to day hell of going to the place is over, things look in your favour in a lot of ways and hopefully you might get some form of due reward for it all. So just let things take their course and try not to worry or be angry, it only means they are still getting what they want. I'm a worrier too but as I've got older I've learned to let things take their course. Worrying won't change anything except make your day shitty. Again good luck and be well!

Trainspotter said:

So it does seem as if  you have a better case against them than they have a defence for, and although I cannot say what will happen, there should be cause for  a bit of optimism.

Thanks. I truly hope you are correct about this. I have drawn the same conclusion but it's nice to know someone else thinks the way I do. I really hate that they are playing stupid games instead of taking the case seriously. It's just more of the same thing that I went through while I was working for them.

There is a distinction in employment between bullying and harassment.

If you are 'disabled ' and an employer treats you unfavourably because of that disablement it is harassment for which you may seek retribution ultimately at a tribunal.  If you are not disabled, and the employer treats you unfavourably it may be bullying but the most you can do is seek retribution through the firm's grievance procedure although it may be possible to go to a tribunal because the fi r m failed to follow its own policy.

It is now becoming clear why the company  is acting in this way. They are harassing you and their defence appears to be it is not harassment because you do not have a protected characteristic, ie you are not disabled.  They have a weak argument, and a judge with the evidence having weighed it up will see that. Not only that but any compensation you are awarded could be increased by up to 25% because the company is not obeying Acas codes of practice or the law, and there is no upper limit on what can be awarded in discrimination caes.  On top of that, the tribunal can award punitive damages for distress  caused. 

So it does seem as if  you have a better case against them than they have a defence for, and although I cannot say what will happen, there should be cause for  a bit of optimism.

As a few people in this thread have suggested I'd get an advocate or solicitor to look at it. It seems like it is making you really anxious. I think by the sound of it the judge has allowed your former employer to dig a deeper hole for themselves. The judge now has it on record that they have recieved evidence from yourself. Your employer sounds either stupid, full of hubris or a combination of both. Your former employer is saying the evidence isn't enough, not the judge. I'm concerned you are worrying a lot, you have provided everything asked by the judge. You can't do much more except get some advice in the real world but it seems that the judge is letting them dig themselves into a very deep hole.

Yes, that is essentially the present situation. The Tribunal has not yet responded to the latest communication from my former employer. I just don't want it to be assumed that I didn't provide evidence because I don't have any, when the truth is that I didn't provide the evidence because I wasn't asked for it. The judge simply asked for a statement from me as to how my disability interferes with my day-to-day activities, and I provided such a statement amounting to several pages. The former employer made a blanket statement saying that I have factual inaccuracies in my documents, but they did not state what any of the supposed inaccuracies were. A document previously provided by them has a lot of inaccuracies and misleading information (incorrect dates, inaccurate lists of meeting participants, sequences of events presented in a skewed order that could only have been designed to cast me in a bad light, etc.).

Another question is whether, when the judge makes the decision on the disability issue, will my former employer get another opportunity to submit information on that specific issue? They were ordered to provide reasons for not conceding my disability and they made no specific statements whatsoever, just blanket claims that I had not provided expert evidence (which I did provide), witness statements (which I was not asked for), or evidence for my claims (which I was not asked for). Will they be allowed to present any new information on the topic and will I have a chance to answer what they say, or has my chance to do that run out already because they have not provided me with anything to answer?

I feel that I am being treated the same way my employer did when I launched an internal grievance against my colleagues for harassment: I made my statements, and they answered them and made further allegations against me that I not only didn't get a chance to answer, but I didn't even know what they had accused me of until several months later and it was nothing but a pack of lies anyway. If I had been given the chance to defend myself, I could have provided plenty of proof against their claims, but they didn't give me that opportunity. They didn't even take into account the mountains of evidence I provided for my own allegations, simply concluding that there was "no evidence" for my allegations and that no "reasonable" person would be offended by what my colleagues did to me, which included several acts of public humiliation. Is that likely to happen in the tribunal, or will I get a chance to answer whatever they say?

I have a tendency to be long-winded (or whatever the written equivalent of that is), but what I really want to know is whether the impact statement I have provided will be accepted as accurate, given that nothing I have said in the document has been specifically refuted by my former employer. Have they now been given the chance to do so and lost that chance, or will they be given yet another opportunity for that at the preliminary hearing at which the issue of whether I am disabled will be determined?

Thanks.

DragonCat16 said:

My former employer has been asked by the Tribunal whether they concede my disability

So Your Former employer has been told, ok thats the evidence, do you now accept that X is disabled? 

They have said no, but has the tribunal asked you for anything else?

The proof in a civil case is based on 'the balance of probabilities'.

This means that if you have a probability that 51% that what you say is correct then the proof is with you.

For your former employer to win then they must damage your case so it is less than 50% like!y that it is correct. This burden of proof for you is far less than it would be under a criminal court where it is beyond all reasonable doubt. Remember you are the plaintiff,so I believe it is your employer who has to show it is more likely than not you are not disabled.

Having said that, if your case explained the things I mentioned in my post above, the company is going to have a difficult job to counteract your arguments. As with all law cases, the only people who always gain are solicitors,, barristers and judges and there are points of law and precedent case law that are taken into consideration, as well as acas codes of practice, employment law, and the equality act.  The judge is meant to listen to the arguments and evidence, however spurious they are or appear to be and come to a conclusion.That is his job.

If you have presented your evidence there is nothing more you can do at this stage. As someone autistic myself I know how difficult it is not to worry, it is in our make-up to constantly churn things over.  But it would appear to me that your employer is just trying it on on the point often made by NTs that you don't look disabled. And you seem to have provided a stack of expert evidence to me in the form of a psychologist report that will state why you are autistic. The judge would have to consider that you were not autistic to ignore this and he is not qualified to diagnose you, so on that basis alone I would imagine you have the basis of proof you need.

 I am surprised the employer did not use the argument that it accepts one Is disabled and has given  reasonable adjustments but  the work was still not up to scratch.They would have then said that other adjustments are not reasonable and dismissal Is on capability grounds after consideration of disability. That is the usual tactic of an employee wanting to get rid of a disabled employee, not just an autistic one

 They will also often offer a 'settlement agreement' before it gets to tribunal in order to prevent costs to them and the bad publicity, this settlement is confidential and they would say if it wasn't accepted dismissal would be for poor performance or misconduct, not  on  the grounds of disability which would be unlawful.

The defence to a tribunal in most cases, would be that the company would say an employee still isn't performing despite adjustments and the dismissal is in grounds of performance and capability, and not dispute the disability. The employee would then have to provide evidence that the performance was adequate considering the needs of the job and the effect the disability has, and the alternatives that could be available including different work at the company.

Thanks for the replies so far. I'm sorry, but what is it too late to worry about? My former employer has been asked by the Tribunal whether they concede my disability and, in reply to the Tribunal, given my impact statement and all the evidence I provided, they have said that no, they don't concede and that, among other things, I have not provided expert evidence that I have ASD. Is that just another bullying or delaying tactic or can what they have claimed be considered by a judge to have merit, even though they haven't really made any concrete claims? My impact statement, which the judge ordered me to send to the former employer and not to the Tribunal, was several pages long and included information about trouble with social interaction and sensory overload, etc., and I pointed out several items that were already known to the employer, because they were mentioned on my performance reviews (basically they were criticising me because of traits related to my disability).

I guess what I am asking is whether the former employer's justification for not conceding my disability be considered sufficient by a Tribunal judge when all it contains are blanket statements and no specific rebuttal of any of the paragraphs contained in my impact statement. Is it common for the employer not to concede disability when there is an official diagnosis, which was provided to them both during employment and again when the impact statement was provided? Do employers often claim that there is no expert evidence that there is an ASD condition under these circumstances?

From what you have said, it seems that the evidence I have provided is enough, but I am wondering whether it is possible that a judge would take my veritable mountain of information and the former employer's one page response and still determine that I am not disabled under the Equality Act. What additional information can I provide as proof of my disability if the impact statement and official diagnosis letter wasn't enough?

Basically the former employer has claimed that I have lied in my impact statement and justifies that by saying that I have provided no proof. At this point, who carries the burden of proof, in a legal sense? Do I need to prove everything in my impact statement, or do they need to prove that the paragraphs in the impact statement are not true?

Thanks again.

Pretty much what Trainspotter said. It's the psychologist who diagnosed your condition who is the only one that matters in the process. The judge cannot deny solid medical evidence. You have provided them with evidence and they are just trying to put the ball into your hands. They hope you will give up. There is no way that they can "convince" the tribunal you are not disabled. You have provided written evidence. They are no longer your employer and you don't have to worry about convicing them of anything. They are still bullying you. Don't let them. It sounds like they are corresponding with you outside of the tribunal. If you have copies of the correspondence they are sending you present copies of it to the tribunal. They shouldn't be asking you for anything. If you haven't already got one, find an advocate or legal advice and don't converse with your former employer anymore. You have no responsiblity to them. Let the tribunal do its job and good luck. Don't let the ******** get you stressed!

[Edited by Federica-Mod]

From what you have written here it now seems as if it is too late to worry about it.

First of all it is now not up to your employer to decide anything.  All as the employer can do is provide evidence as to why they think you should not be classed as disabled.  It is up to the judge to decide on the basis of probabilities (not beyond all reasonable doubt) as to whether to accept or not accept any evidence.

You appear to have had your case heard in a preliminary hearing, and the judge has asked for proof of the fact your autism causes problems in your everyday life.  Your diagnosis report should have been able to prove this, but it seems like he also wanted further details, such as you suffer from sensory overload (causing you confusion), you have difficulty processing information (causing you to appear very hesitant), you have trouble with social interraction (causing you to misunderstand things, take things literally and find it difficult to engage in chit-chat as well as being unable to interpret or exhibit so-called 'body language'), you find friendships difficult, you are frequently misunderstood, you are suffering from chronic anxiety and liable to depression, others find it difficult to engage with you, you are someone who likes to work alone, you hate change, etc.  With your assessment this should then be taken with the aforementioned and further proof should not be required although you may be cross-examined about it. 

Cases submitted to an employment tribunal have to go through several stages.  A judge will decide whether the case has enough chance of success at one of several iniital stages and to me this seems to be what is happening in your case.

You have presented evidence to the judge, and I think the judge will have read the information that has been provided to him.  He should realise you do not verbally interract well  which in itself is showing how you are affected in everyday life, so I would try to remain upbeat (I know it is easier said than done).

Are you being representated by a solicitor or do you have a support worker?  If so they should be able to provide some reassurance for you.  But as I say, it is too late to worry about this now.

I have a case before the tribunal, with a preliminary hearing in October.  But my employer on hearing this are trying to dismiss me in the meantime by offering me a 'settlement agreement' which they say they will dismiss me on grounds of performance if I don't accept.  Employers can be really nasty and mine is very much so.  What I have been offered is a considerable sum I admit but I have to look at the wider issues, and the fact that I am unlikely to get another job.  I also am very uneasy about accepting a 'bribe' and having the employer coming up without any consequences as to its treatment. 

You also have the right to request a 'reconsideration' if this initial hearing is unsatisfactory to you which you have fourteen days to request.

I hope it all goes well for you.