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 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.
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.
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)