Constructive dismissal? - ** SETTLED **

[becky2585]

There is a subsection that allows for sensory impact.

 

A sub section of what?

 

The old DDA had a specified list of "capacities" which had to be affected by a disability - the EqA had no such list. The guidance to the EqA states:

 

In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities."

[Pusillanimous]

There was aprovision under the list of capacities for sensory impairment, albeit it very physically disabled oriented. See as follows. I know that the ET did not find the list very helpful and the Equality Act is now referred to. However, is the DDA95 now completely defunct in relation to employment law or is it still a reference point?

 

[Pusillanimous]

Thanks Pusillanious,

 

The respondent has requested access to my medical records which I have granted verbally. They are expected to send me a consent form within 7 days and I return signed within 7 days from receipt. I have found a draft consent form online. Would it be appropriate to sign the draft consent form and send to the solicitor. My rational here is to speed the whole process up.

 

DJ

 

I would recommend requesting to see what is contained in the medical records before they go out. This gives you an idea of what they will see, and gives you the opportunity to object and remove any sundry items that might have crept in that have nothing to do with your claim.

 

You would be surprised.

[dj1971]

Nice 1,

 

Will speak to the GP practice and see if I can get a copy first.

 

Anyone any thoughts on the disability statement?

 

DJ

[becky2585]

Nice 1,

 

Will speak to the GP practice and see if I can get a copy first.

 

Anyone any thoughts on the disability statement?

 

DJ

 

Sorry, I think the thread went off on a tangent!

 

It's very good, but are there any additional examples you can include? Best bet is to look at the EqA guidance and see if there's anything you may have missed?

[becky2585]

There was aprovision under the list of capacities for sensory impairment, albeit it very physically disabled oriented. See as follows. I know that the ET did not find the list very helpful and the Equality Act is now referred to. However, is the DDA95 now completely defunct in relation to employment law or is it still a reference point?

]

 

The DDA is entirely defunct, and the EqA has essentially put forward completely new guidelines. However, IMO they give the ET a much wider jurisdiction to find that claimants have a disability. It's very much assessed on a case by case basis.

 

That said, clearly the EqA is relatively new legislation, and case law hasn't had a lot of time to develop, so most precedent cases were decisions based on the DDA. It's always the case though, as someof the oldest and best known cases were unfair dismissal based in the Industrial Tribunal, but the legal principles remain the same.

[dj1971]

Thanks Becky,

 

So for clarification purposes, me informing my line manager I have a history of depression would not be enough to say my ex employer knew I had a disability. However if I can prove I meet the definition disability as per the Eqa, it would be concluded that my ex employer knew, or could reasonably expected to have known that I am disabled.

 

Have I got that right?

 

DJ

[becky2585]

Well, actually, the only defence is if they could "not reasonably be expected to know" about the disability, not whether they shouldchave probed it more if you see what I mean.... So on that basis, as you told them about your depression, that ought to be sufficient to bypass any argument they may have that they couldn't possibly have known - as you pointed it out to them.

[Pusillanimous]

The DDA is entirely defunct, and the EqA has essentially put forward completely new guidelines. However, IMO they give the ET a much wider jurisdiction to find that claimants have a disability. It's very much assessed on a case by case basis.

 

That said, clearly the EqA is relatively new legislation, and case law hasn't had a lot of time to develop, so most precedent cases were decisions based on the DDA. It's always the case though, as someof the oldest and best known cases were unfair dismissal based in the Industrial Tribunal, but the legal principles remain the same.

 

Thanks, Becky. If a person has a case that predates the Equality Act (pre Oct 2010) do the Tribunal look at the old DDA or the new Eq Act, or is there not much difference between the two?

[dj1971]

Excellent,

 

Thanks Becky.

 

So next step is working out what was the PCP that put me at a substantial disadvantage.

 

I cannot grasp what qualifies as a Provision, criterion or practice. Is it a rule that was applicable at the company?

 

DJ

[Pusillanimous]

It is basically to do with the company structure. For example, if they have steps and swing doors, that is a provision based on the company's physical features and location. A reasonable adjustment for an employee in a wheelchair, therefore, would be a wheelchair ramp installed.

 

Your question is: what was it about my employer's PCP that pt me at a disadvantage because of my medical condition, that did not have the same effect on those who did not? What changes could they have made to accommodate me? What would have been the cost? How much effort was needed for them to make this adjustment?

[becky2585]

The old test was a "requirement or condition" rather than a PCP. The definition can be quite wide - for example, the requirement for people to "network" out of hours could substantially impact women with children, or agoraphobics, greater than their comparators.

 

Ditto requiring people to move to an office several miles away, if they're disabled or have children that could be an issue... And also, ethnic minority groups are less likely to have their own transport, so that could impact them as well... It's hard to be specific as to what can constitute a PCP. But what seems like an every day requirement can have an adverse impact on minority groups.

[becky2585]

Another example - advertising a job role in an area primarily where ethnic minorities live, but stating only people within a 3 mile radius can apply. That would not be unlawful in itself, but it would have a disproportionate effect in that white employees may be unable to apply for the roles. (That's an actual example I found from case law under the old Race Relations Act a few years back).

[dj1971]

OK, This one I am really struggling with. Think I might have to instruct a solicitor on this one.

 

One last effort:

 

I submitted a formal grievance against my line manager to his line manager. The grievance included a complaint that my manager had failed to provide me with a set of guidelines specific to my role, indicating what I would have to achieve in order to achieve a grade 4 (above average, goes above and beyond what is required) at my next annual performance review.

 

The manager of my manager upon reading my grievance decided that the guidelines would be dealt with separately and requested I attend a separate meeting during which she would provide me with the requested guidelines. This disadvantaged me due to my disability as it made things more complicated for me, effectively meaning I now had 2 formal grievances.

 

I requested that the guidelines be kept as part of the formal grievance, being that this was how it had been submitted and gave my reasons, that this was making things more complicated for me and difficult to understand. The senior manager denied my request and insisted I attend the separate meeting.

 

I replied again stating this was causing me some confusion and asking for clarification. The senior manager at this point became abusive and threatening, stating if I believed I was wihtin my rights to refuse to meet with her, she suggested I should consult the employee conduct.

 

This caused me to have a full blown panic attack and I had to go home early that day and was presribed anti anxiety medication the following day by my GP.

 

So the criterion applied was to treat the complaint for not having received requested guidelines separately to my formal grievance.

 

I was disadvantaged because it caused me further confusion and anxiety.

 

Reasonable adjustment would have been to allow the complaint for not having received guidelines as part of the formal complaint, as it had been submitted.

 

How does that measure up?

 

DJ

[Pusillanimous]

That makes sense to me. The following webpage from MIND explains it well: Section 3, and then scroll down a bit. From my reading, your employer was obliged to consider your reasonable request.

 

Extract:

 

The employee does not need to come up with suggestions, but it will help to do so, and the employer must consider any reasonable adjustments that the employee proposes.

 

http://www.mind.org.uk/help/rights_and_legislation/disability_discrimination_under_the_equality_act_2010

[dj1971]

Excellent,

 

Thank you Pusillanimous.

 

So I now have my disability statement completed and PCP identified.

 

Next step is the main part of the judges' order, to clarify my claim with detail.

 

I have realised I missed 2 relevant claims when the judge was listing what the claims are at the CMD on Friday, though they were both on the original ET1. Can adding these in be part of the clarification process the judge has ordered me to carry out?

 

I believe the alternative would be to submit an application to amend the claim. How would I go about doing this?

 

DJ

Edited September 17, 2012 by dj1971

[Emmzzi]

assume the judge knows nothing.

 

WHY did it cause you further anxiety. Someone with no MH knowledge will look at that and go "it's just silly."

 

What was the OUTCOME of having further stress and anxiety?

 

These things are clear in your mind but nit to someone who does not have your condition or your job.

[dj1971]

Thanks Emmzzi,

 

It caused me further anxiety because I could not understand why the guidelines were being dealt with separately and the manor in which the senior manager addressed me was very threatening and intimidating.

 

Experiencing further stress and anxiety caused me to leave the building and go for a walk, then I had a full blown panic attack in the local park where a member of the public came and walked me to the local train station where I took the train home. Next day I was still shaking with anxiety, unable to go to work and had to make an emergency appointment to see my GP who prescribed anti anxiety medication.

 

Is that more clear now?

DJ

[Emmzzi]

Yes, I suspect that level of detail is what the judge is looking for when he says more detail.

[dj1971]

Thanks Emmzzi,

 

Any thoughts on my question about clarifying/amending my claim as above?

 

DJ

[Emmzzi]

Not so much my specialist area I am afraid - I'm not a process expert and would not like to give you poor advice.

[Pusillanimous]

Excellent,

 

Thank you Pusillanimous.

 

So I now have my disability statement completed and PCP identified.

 

Next step is the main part of the judges' order, to clarify my claim with detail.

 

I have realised I missed 2 relevant claims when the judge was listing what the claims are at the CMD on Friday, though they were both on the original ET1. Can adding these in be part of the clarification process the judge has ordered me to carry out?

 

I believe the alternative would be to submit an application to amend the claim. How would I go about doing this?

 

DJ

 

The EJ has given you leave to clarify your aim. This is good news, as you do not need to make an application to do so. What he or she wants you to do is "particularise" your claim. Unlike the witness statement, this time they do want you to stipulate which law (section subsection: spell it out!) has been breached. You need to include, who, where, when and how. If you cannot remember a specific date, it is OK to be approximate.

 

These will then be your "Further & Better Particulars". If it was in your original ET1 it is all right to include here.

 

Any new claim connected with the original can also be included, say you forgot to mention victimisation. If the other party complain that you need to make an application to amend, your response will be that the F&BP is the conventionally accepted vehicle for such an amendment.

 

I would recommend you plead direct and indirect discrimination, harassment and victimisation, as well as constructive dismissal. Don't forget to mention any lapses in procedure. For example, failing to give your prosposal for a reasonable adjustment any consideration at all, as required by the Eq Act.

 

You know best, but you get the idea.

[dj1971]

Thank you so much Pusillanimous,

 

Can I also include where they have breached their own policies?

 

One other thing they asked for is my schedule of loss. I advised it had already been submitted via ACAS, but the barrister came back saying "yes, but as without prejudice"

 

So presumably I remove the without prejudice and add claimant reserves the right to amend this document. Correct at xx date?

 

DJ

[Pusillanimous]

Yes, remove "without Prejudice" but don't put you "reserve the right to amend" as EJ's really dislike that phrase, and the EAT specifically prohibit it.

 

You will have the opportunity to update the schedule of loss nearer to the date of the hearing. Then, if your claim is upheld, you may be able to update it again. Make sure it is true, accurate and complete.

[Pusillanimous]

 

Can I also include where they have breached their own policies?

 

DJ

 

Yes, you should. However, keep it relevant, you don't want them dozing off.