Employment > Disability. Employer won't make Reasonable Adjustments. I might be fired

[Avery]

I do have a concern when you say " I have written 'a lot' now". The Tribunal will only want to be reading what is absolutely relevant to the claim you are making. It needs to be factual but concise.

Can I just ask do you understand the difference between direct and indirect discrimination when you are referring to section 19? Direct discrimination occurs when an individual is personally discriminated against due to a protected characteristic. Indirect discrimination occurs when a policy or rule affects a wider group of people e.g. all employees but some people with a protected characteristic are more unfairly affected.

Thank you for raising this, and for your assistance. Yes, I am now aware of this.

• I believe the people who chaired my hearings and then subsequently fired me have contravened s13 Direct discrim.
• I believe the upper management who made policies that no one is allowed to continue working from home, no matter what, have contravened s19 Indirect discrim.

• I also believe that I have suffered s15 "discrimation arising from disability", though I am not as certain who is responsible... the middle management who dismissed me and refused to make adjustments to my role, or the upper management who made the policy of no more 'remote working' for all, or both the upper and middle management.

I have added all the Sections of EqA I intend to add to my court form (below). There will also be explanatory text between the statutes to explain why I am stating the various sections have been contravened.


s6 :: DISABILITY ::

Part 2 Equality; Chapter 1 Protected characteristics; s6 Disability
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/6

(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.


SCHEDULE 1; Part 1 Determination of disability; 2 Long-term effects
Link: https://www.legislation.gov.uk/ukpga/2010/15/schedule/1/part/1/crossheading/longterm-effects

(1) The effect of an impairment is long-term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.

(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.



s13 :: DIRECT ::

Part 2 Equality; Chapter 2 Prohibited conduct; s13 Direct discrimination
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/13

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.

(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.
[I assume this part (3) informs employer that they are allowed to allocate some of my duties to other staff members without being accused of further discrimination]

(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.

(5) If the protected characteristic is race, less favourable treatment includes segregating B from others.

(6) If the protected characteristic is sex—
(a) less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;
(b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

(7) Subsection (6)(a) does not apply for the purposes of Part 5 (work).

(8) This section is subject to sections 17(6) and 18(7).


Part 2 Equality; Chapter 2 Prohibited conduct; s25 References to particular strands of discrimination
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/25

(2) Disability discrimination is—
(a) discrimination within section 13 because of disability;



s19 :: INDIRECT ::

Part 2 Equality; Chapter 2 Prohibited conduct; s19 Indirect discrimination
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/19

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.


Part 2 Equality; Chapter 2 Prohibited conduct; s25 References to particular strands of discrimination
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/25

(2) Disability discrimination is—
(c) discrimination within section 19 where the relevant protected characteristic is disability;



s15 :: DISCRIMINATION ARISING FROM DISABILITY ::

Part 2 Equality; Chapter 2 Prohibited conduct; s15 Discrimination arising from disability
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/15

(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.


Part 2 Equality; Chapter 2 Prohibited conduct; s25 References to particular strands of discrimination
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/25

(2) Disability discrimination is—
(b) discrimination within section 15;



s20 :: DUTY TO MAKE ADJUSTMENTS ::

Part 2 Equality; Chapter 2 Prohibited conduct; s20 Duty to make adjustments
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/20

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.


SCHEDULE 8; Part 2 Interested disabled person; 5 Employers
Link: https://www.legislation.gov.uk/ukpga/2010/15/schedule/8/part/2/crossheading/employers-see-section-39

(2) Where A is the employer of a disabled contract worker (B), A must comply with the first, second and third requirements on each occasion when B is supplied to a principal to do contract work.

(3) In relation to the first requirement (as it applies for the purposes of sub-paragraph (2))—
(a) the reference in section 20(3) to a provision, criterion or practice is a reference to a provision, criterion or practice applied by or on behalf of all or most of the principals to whom B is or might be supplied,
(b) the reference to being put at a substantial disadvantage is a reference to being likely to be put at a substantial disadvantage that is the same or similar in the case of each of the principals referred to in paragraph (a), and
(c) the requirement imposed on A is a requirement to take such steps as it would be reasonable for A to have to take if the provision, criterion or practice were applied by or on behalf of A.



Part 2 Equality; Chapter 2 Prohibited conduct; s20 Duty to make adjustments
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/20

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to—
(a) removing the physical feature in question,
(b) altering it, or
(c) providing a reasonable means of avoiding it.


SCHEDULE 8; Part 2 Interested disabled person; 5 Employers
Link: https://www.legislation.gov.uk/ukpga/2010/15/schedule/8/part/2/crossheading/employers-see-section-39

(2) Where A is the employer of a disabled contract worker (B), A must comply with the first, second and third requirements on each occasion when B is supplied to a principal to do contract work.

(4) In relation to the second requirement (as it applies for the purposes of sub-paragraph (2))—
(a) the reference in section 20(4) to a physical feature is a reference to a physical feature of premises occupied by each of the principals referred to in sub-paragraph (3)(a),
(b) the reference to being put at a substantial disadvantage is a reference to being likely to be put at a substantial disadvantage that is the same or similar in the case of each of those principals, and
(c) the requirement imposed on A is a requirement to take such steps as it would be reasonable for A to have to take if the premises were occupied by A.



By refusing to comply with the second requirement of the duty above (not removing the physical feature / allowing me to work from home), they have conravened s21 also.

s21 :: FAILURE TO COMPLY WITH THE DUTY ::

Part 2 Equality; Chapter 2 Prohibited conduct; s21 Failure to comply with duty
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/21

(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.
(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.
(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.



s39 :: EMPLOYEES AND APPLICANTS ::

By "refusing to make adjustments" they have conravened this.

Part 5 Work; Chapter 1 Employment; s39 Employees and applicants
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/39

(1) An employer (A) must not discriminate against a person (B)—
(a) in the arrangements A makes for deciding to whom to offer employment;
(b) as to the terms on which A offers B employment;
(c) by not offering B employment.


By "dismissing me" they have conravened this.

Part 5 Work; Chapter 1 Employment; s39 Employees and applicants
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/39

(2) An employer (A) must not discriminate against an employee of A's (B)—
(a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment.


The following SCHEDULE applies to the two contraventions of s39 above, because of the failure to remove the provision / criterion / practice / physical feature, that put me at a disadvantage:

SCHEDULE 8; Part 2 Interested disabled person; 5 Employers
Link: https://www.legislation.gov.uk/ukpga/2010/15/schedule/8/part/2/crossheading/employers-see-section-39

(2) Where A is the employer of a disabled contract worker (B), A must comply with the first, second and third requirements on each occasion when B is supplied to a principal to do contract work.

(3) In relation to the first requirement (as it applies for the purposes of sub-paragraph (2))—
(a) the reference in section 20(3) to a provision, criterion or practice is a reference to a provision, criterion or practice applied by or on behalf of all or most of the principals to whom B is or might be supplied,
(b) the reference to being put at a substantial disadvantage is a reference to being likely to be put at a substantial disadvantage that is the same or similar in the case of each of the principals referred to in paragraph (a), and
(c) the requirement imposed on A is a requirement to take such steps as it would be reasonable for A to have to take if the provision, criterion or practice were applied by or on behalf of A.

(4) In relation to the second requirement (as it applies for the purposes of sub-paragraph (2))—
(a) the reference in section 20(4) to a physical feature is a reference to a physical feature of premises occupied by each of the principals referred to in sub-paragraph (3)(a),
(b) the reference to being put at a substantial disadvantage is a reference to being likely to be put at a substantial disadvantage that is the same or similar in the case of each of those principals, and
(c) the requirement imposed on A is a requirement to take such steps as it would be reasonable for A to have to take if the premises were occupied by A.



s111 and s112 :: PROHIBITED CONDUCT: ANCILLARY ::

Middle Management ordered my Line Manager (Lower Management) not to change my role, so Middle-M have conravened this.

Part 8 Prohibited conduct: ancillary; s111 Instructing, causing or inducing contraventions
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/111

(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention).

(2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4) For the purposes of subsection (3), inducement may be direct or indirect.


Are the "proceedings" mentioned below "the Tribunal", or is this about suing an individual seperately ???

(5) Proceedings for a contravention of this section may be brought—
(b) by C, if C is subjected to a detriment as a result of A's conduct;

(6) For the purposes of subsection (5), it does not matter whether—
(a) the basic contravention occurs;
(b) any other proceedings are, or may be, brought in relation to A's conduct.


I am not certain if Middle-M (or others) have also contravened this ???

Part 8 Prohibited conduct: ancillary; s112 Aiding contraventions
Link: https://www.legislation.gov.uk/ukpga/2010/15/section/112

(1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention).

(2) It is not a contravention of subsection (1) if—
(a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and
(b) it is reasonable for A to do so.

(3) B commits an offence if B knowingly or recklessly makes a statement mentioned in subsection (2)(a) which is false or misleading in a material respect.

(4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating to the provision of this Act to which the basic contravention relates.

(6) The reference in subsection (1) to a basic contravention does not include a reference to disability discrimination in contravention of Chapter 1 of Part 6 (schools).

[ULA]

I do have a concern when you say " I have written 'a lot' now". The Tribunal will only want to be reading what is absolutely relevant to the claim you are making. It needs to be factual but concise.

Can I just ask do you understand the difference between direct and indirect discrimination when you are referring to section 19? Direct discrimination occurs when an individual is personally discriminated against due to a protected characteristic. Indirect discrimination occurs when a policy or rule affects a wider group of people e.g. all employees but some people with a protected characteristic are more unfairly affected.

[Avery]

Thanks for your posts and the update on where you are in the process.
Apologies for the legal world they do sometimes make things unnecessarily complicated.
Sections are within the chapters. So for example in the link on your post to the legislation and my reference to Section 6 that is contained in Part 2, Chapter 1.

Yes, each Schedule either just has sections numbered 1 onwards and sometimes if it is a long Schedule, it will be split into parts with sections but again these are number sequentially.

I have linked to the ET1 form below:

https://assets.publishing.service.go...36/et1-eng.pdf

PoC are not a form but a narrative document for which if needed I can send you a template and detail what needs to be contained within it.

Thank you again.

Since my last post I have been going through the statute, and although I still find it tricky to understand than the guidance for employers, I think I understand it better now.

I'm glad the PoC form will give me more room to type out my case, I have written 'a lot' now.

I already had a detailed Timeline in the form of a Google Sheet (similar to an Excel file), and a detailed history of every email and document sent back and forth in a Google Doc (similar to a Word doc)...

... but now, since getting into the statutes, I have written my explanation of what happened and how many times my employer broke each section of the Equality Act. ... before having to look at employment law, I was always told that this is called a 'Chose in Action', what you write on the court form... but I guess for this purpose it will be called a PoC (Particulars of Claim).

The only thing I can't find at the moment, is how strictly the SCHEDULES can be applied (included in the PoC).

Q :: I am looking at "SCHEDULE 8 (Part 2 Interested disabled person; 5 Employers)" (3) and (4) of the Equality Act because it seems to apply to Section 39 (Employees and applicants)... because the text in the schedule refers to s39 anyway: https://www.legislation.gov.uk/ukpga...see-section-39 ...
... However, can I also refer to this schedule when talking about Sections 19 (Indirect discrimination) -and- 20 (Duty to make adjustments?

The schedule seems to be entirely relevant to these two sections also, but there is no text advising this.

SCHEDULE 8 also seems to apply to s19 and s20 because of it's mention of the "first" and "second" requirement to 'make adjustments' of the EqA.

Part 2 Equality; Chapter 2 Prohibited conduct; s20 Duty to make adjustments ::
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Part 2 Equality; Chapter 2 Prohibited conduct; s20 Duty to make adjustments ::
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Thank you for reading

[ULA]

Thanks for your posts and the update on where you are in the process.
Apologies for the legal world they do sometimes make things unnecessarily complicated.
Sections are within the chapters. So for example in the link on your post to the legislation and my reference to Section 6 that is contained in Part 2, Chapter 1.

Yes, each Schedule either just has sections numbered 1 onwards and sometimes if it is a long Schedule, it will be split into parts with sections but again these are number sequentially.

I have linked to the ET1 form below:

https://assets.publishing.service.go...36/et1-eng.pdf

PoC are not a form but a narrative document for which if needed I can send you a template and detail what needs to be contained within it.

[Avery]

Avery ... sections 5, 13, 15, 20-22 and within that section 20 (13) details the relevant Scheule of the Act as applicable and section 23.

Q :: I notice that the Act is broken up into "Parts" at the top, and "Schedules" at the bottom. Also, the Parts are divided into "Chapters".
When you refer to "sections", are you referring to the "Parts"?

I though I had better ask, one reason being - I notice that the Schedules at the bottom have their own seperate numbering (1 -– 28).

https://www.legislation.gov.uk/ukpga/2010/15/contents

Thank you for your help

[Avery]

You need to set out just which act you complain of and then state tat it is contrary to the necessary section.

You cannot leave this to the judge to formulate your case for you

Thanks. I will read statute carefully, Equality Act, H&SAW Act, etc.

[Avery]

Avery all merged. Can I just ask that if you have further questions as your claim progresses you stay posting on this thread please, even if it is a new question.

No problem, thanks.

Avery The prime piece of legislation you need to be looking at is the Equality Act (EqA) 2010 and I suggest sections 6, 13, 15, 20-22 and within that section 20 (13) details the relevant Scheule of the Act as applicable and section 23.

Fantastic, thank you so much. I will read carefully.

Avery What do you mean when you say you have "had problems trying to get through to your lawyers?" Have you appointed a lawyer to represent you or are you using a union lawyer?

I am not in a union. I have appointed a lawyer but I haven't been able to talk to her since August, comms are erratic. I think she had had some health problems.

Avery Given your earlier posts now on this thread are you now at the point of completing your ET1 and possibly and associated document known as Particulars of Claim (PoC)?

I have started my '6 Week Conciliation' process with ACAS. According to ACAS, this process ends on 8th December. If I reach an agreement with my employer I will complete a COP-3 form to specifiy the details of the agreement, though I think this will be unlikely.

ACAS have contacted my employer (8th / 9th Nov) to ask if reinstatement will be possible. I haven't heard back yet.

I will look for the ET1 and PoC forms, thank you. If you have any examples of completed forms I would be very grateful for any links you can share with me.

I have started searching (of course) and have found this: https://medium.com/adviser/starting-...1-6ae5eef95469
I will continue searching, and post my progress here.

Thank you for your help.

[ULA]

Avery all merged. Can I just ask that if you have further questions as your claim progresses you stay posting on this thread please, even if it is a new question.

The prime piece of legislation you need to be looking at is the Equality Act (EqA) 2010 and I suggest sections 6, 13, 15, 20-22 and within that section 20 (13) details the relevant Scheule of the Act as applicable and section 23.

Also a few more questions so I know exactly where you are in the process:

What do you mean when you say you have "had problems trying to get through to your lawyers?" Have you appointed a lawyer to represent you or are you using a union lawyer?

Given your earlier posts now on this thread are you now at the point of completing your ET1 and possibly and associated document known as Particulars of Claim (PoC)?

[Avery]

You need to set out just which act you complain of and then state tat it is contrary to the necessary section.

You cannot leave this to the judge to formulate your case for you

Thanks. Looks like I will have read through the sections again. The last time I did this, every important element seemed to be covered by barely a few words, which didn't seem to tally with the statutory guidance from the HSE and E&HRC. It was as if these two gov bodies were providing more detail than was possible to provide.

... Perhaps I just find it easier to understand the guidance, and harder to undertand the statutes as they are actually written.

The most important subject is 'reasonable adjustments' for disability. Equality Act 2021.

[Avery]

Avery you are now in the employment thread.

Please can I ask whether this is a continuation of your previously 2 started threads and in particular the one linked to below:

Employment > Disability. Employer won't make Reasonable Adjustments. I might be fired - LegalBeagles Forum

If so, it might be a good idea for me to merge these two threads as it is much better for those of us advising to have the complete knowledge of any background to an employment tribunal claim so that we can ensure consistency of advice being given as the case progresses.

Yes, please feel free to move thread, and merge into previous thread.

The difference between this thread and the last, is that I am now asking a different specific question (case prep), and instead of saying "i might be fired", I have now lost my job and lost my appeal, and have started talking to ACAS.

[ULA]

Avery you are now in the employment thread.

Please can I ask whether this is a continuation of your previously 2 started threads and in particular the one linked to below:

Employment > Disability. Employer won't make Reasonable Adjustments. I might be fired - LegalBeagles Forum

If so, it might be a good idea for me to merge these two threads as it is much better for those of us advising to have the complete knowledge of any background to an employment tribunal claim so that we can ensure consistency of advice being given as the case progresses.

[dslippy]

You need to set out just which act you complain of and then state tat it is contrary to the necessary section.

You cannot leave this to the judge to formulate your case for you

[Avery]

I tried to post this in the Employment Law section, but when I clicked "Post" it appeared here in the Welcome Forum. Admins, please can you move this to the right place for me? Thank you.

[Avery]

Hi folks.
I have experienced problems trying to get through to my lawyer, and subsequently have had to do a lot of work puting my case together, and trying to understand exactly which laws my employer has violated, and how.

I am able to explain exactly which statutory guidance they have violated (as provided by the HSE and Equality & Human Rights Commission), but not which statutues they have violated or how, mainly because I find the written legislation comparatively harder to understand ( https://www.legislation.gov.uk/ukpga/2010/15/contents ).

Q : Do I have to explain exactly how my employer has violated each statute, or shall I just leave this for the judge?

As I haven't been to a Tribunal (or any type of court) before, I am unaware of how much legal knowledge of my case, I need to bring to the trial.

Thank you for reading

[Avery]

There is indeed an option to bypass but you still have to effectively "start" the process to then bypass it in order to get your certificate. Without the certificate you will not be able to make an ET claim.

However I would advise that you do engage with the process, not of the sake of "brownie points" but to be able to show to any Tribunal, if it ends up at a Hearing that you have been a reasonable claimant who has tried to resolve your claim before resorting to taking up Tribunal time.

Re "to show to any Tribunal, if it ends up at a Hearing that you have been a reasonable claimant who has tried to resolve your claim before resorting to taking up Tribunal time" ... this was my interpretation of 'brownie points'.

I think I will follow your advice and go through the 6 weeks of mediation. It will feel like hell dragging this out even longer, but I think it's worth it just to keep my case stong. Thanks