Is this disability discrimination?

[safehouse]

I am currently completing an ET1 form for a family member with a disability (post-traumatic stress disorder) who I will call X (but they aren't in the X-Men!)
I have no legal training apart from what I have been taught by Professor Google!

There are various instances of disability discrimination over a long period which I feel form a contnuing act, with the final act being within 3 months of notifying ACAS
These include indirect discrimination, failure to make reasonable adjustments and discrimination arising from disability.

However, there are a couple of events which feel like they should be discrimination but I don't know how to categorise them. Can anyone help please?

I would describe them as things the employer did which they knew would worsen the symptoms of the disability and did them anyway, although not always maliciously.

I'm afraid I'm going to start off being vague so that the person isn't identified and hope you have enough to go on.


1. The employer is aware that X has PTSD and that shouting at them will trigger their PTSD but shouts at them anyway.
They are actually shouting at X for raising a concern about a change that will worsen the symptoms of their PTSD.
Because they are not being shouted at for having a disability but raising a concern related to their disability, I am not sure of it is harrassment.
And because it is a one-off event, I'm not sure if it counts as victimisation?


2. The employer is already aware that the threat of something happening, which is related to work but outside of work, is triggering the claimant's PTSD symptoms.
Without being fully aware of the facts, and it not being their business to do so, the employer INCORRECTLY tells X that this event HAS happened, causing them severe distress and making them severely unwell.
It takes several months of worrying until X learns that what they were told was incorrect.
The employer told X this with good intentions but still must have known it would trigger their PTSD but did it anyway.

Because the employer didn't tell X this BECAUSE they are disabled, it is not harrassment.
I don't know if not sensibly modifying your behaviour counts as failure to make reasonable adjustments but it doesn't feel like a typical reasonable adjustment.

Rightly or wrongly, it is often easier to think about physical rather than mental health disabilities so I've tried to think of an equivalent where an employer does something they must know will worsen someone's disability but it is done out of stupidity and lack of thought rather than malice...

An employer chucks a heavy stapler at an employee to catch who has a shoulder disability (e.g. severe arthritis).
They have to catch it to stop it smacking them in the face. Doing so, causes further injury and worsens the symptoms of their disability.
The employer didn't do it because the person is disabled, they did it because they are stupid.
But surely this behaviour can't be looked on as OK by a tribunal?

Thanks in advance for anyone who takes the time to read all that!

[Retromau5]

Hello, where are you at with your ET1 so far? Has X been dismissed? Did they resign? When was the employer made aware of the disability? Is it a long term illness? If you can explain what you have at the moment it will help you get the right assistance from someone. And I wouldn't use the example with the stapler, it shouldn't be thrown anyway as it's most definitely a health and safety risk before anything else and it won't serve very well as a disability comparison, if that's what you're aiming for.

Point 1, personally I'd consider it as bullying behaviour. The act of shouting at someone isn't victimisation itself, but the content of the verbal abuse could be depending on what was said.

From what you've said the problem for me with point 2 is the lie, that'll be a hard thing for them to justify. Regardless of the reason they deliberately misrepresented the truth, which this and the subsequent action of not correcting it caused distress.

Discrimination is defined as - treating some with a protected characteristic less favourably than others (gov.uk website).

Discrimination doesn't have to be deliberate, it can also come from ignorance.

[safehouse]

Thanks for the reply.
In answer to your questions:

I haven't started the ET1 yet but ACAS certificate hasn't been issued yet and I already have the details written up.
They haven't resigned.
The employer was aware of the disability.
It is long-term.

I wasn't going to use the example of the stapler on the form or in court but I was trying to make the point just on here that this type of behaviour feels like discrimination but I can't see how it fits into any of the recognised categories of:

direct
indirect
discrimination resulting from disability
harrassment due to disability
victimisation
failirue to make reasonable adjustments

but surely knowlingly exacerbating someone's disability must be something?

[ULA]

As you are probably aware you cannot submit the ET1 without the ACAS certificate but always good to get it underway. Did the respondent engage at all in the Early Conciliation process?

In respect of your points 1 & 2.

1. I appreciate X has PTSD but was the employer aware or could they have reasonably expected to have been aware that specifically shouting at X triggered their PTSD. Not all people who have PTSD have the same triggers.

2. This may be a reasonable adjustment possibility. However it is hard to say because nowhere in your post have you mentioned what the employer has already done (or not done) in terms of making reasonable adjustments, taking into account any medical or Occupational Health (OH) assessments or advice.

Also be aware that you cannot necessarily pigeon-hole every, what is perceived to be an act of detriment due to disability, into the 6 categories but they may point to a general attitude by the respondent that can build a picture in any witness statement as to how the claimant, who has a disability as defined by the Equality Act (EqA) 2010, is being treated.

Can I just put a warning out that "Professor Google" is not always your friend on legal matters, depending on where it is directing you to and anything AI generated needs to be verified.

[safehouse]

Thank you for this incredibly helpful answer.

I must apologise that it is impossible to answer your questions properly without revealing information which could allow identification of X should someone who works for their organisation happen to look at this forum, as slim a chance as that might be. And X is a very private person.

Also, the organisation's grievance policy explicitly states that sharing details of any grievances outside the organisation can result in dismissal.

But yes, they knew shouting would trigger X's PTSD.
And no, they haven't engaged with ACAS.


Please could I ask 2 more questions ?

Nearly every point we are making in the ET1 can be proven by email, text, letter evidence without witness corroboration. I have numbered all pieces of evidence. Am I allowed to refer to these in the ET1?

e.g. "X sent an email to Y on 7th November saying "blah blah" (Appendix 1)"


Also, can I refer to case law in the ET1, e.g.

"Kermit vs. Miss Piggy ruled that a disabled employee should not have been placed on half pay when the employer's failure to make reasonable adjustments was the cause of that absence"

Thanks again

[ULA]

I completely understand your need to ensure the safety of X's identity. However this means if anything is unclear, particularly in information you provide in order for us to assist, then I will make it clear when the advice I give has a caveat to it, due to the lack of information.

Thank you for the further information on Q1 post #1. The definition of victimisation is where an individual is treated less favourably as a result of having made, tried to make, helped someone else to make, or assumed to have made, a complaint or grievance of disability discrimination under the Act. So I am not sure this action would be victimisation therefore I am back to the fact that this shows a pattern of conduct towards to X that impacts adversely as a result of their disability - it is bordering on discrimination "arising from" a disability.

Onto your other 2 questions post #5 which I will cover as a general response on completing the ET1 and relevant to section 8.2 and that can also be set out in a supporting document you may have seen referred to on "Professor Google" as the Particulars of Claim.

Please be aware that the ET1 and if you include a Particulars of Claim are where you need to state what all X's claims are and provide as much detail in support of those claims. This should be set out in chronological order with dates, what the incident of detriment was i.e. direct discrimination, indirect, harassment etc, who by and whether there were any witnesses. You do not at this stage need to provide the documentary proof, that will be for the final hearing bundle and which can be cross referenced to in the witness statement but that is a way down the line.

Yes any references to case law at the relevant chronological point as the claim is being set out is good to add in.

If you, on behalf of X, decide to write a Particulars of Claim that you upload with the ET1, then there is a template that I can provide which can be adapted and which I can advise you on - just let me know at the time.

[safehouse]

Thanks again.

If I am submitting online, what are the advantages/disadvantages of submitting a separate particulars of claim rather than putting it on the ET1 form and is it true that, if separate, it needs to be in rich text format?

[ULA]

You can set everything out on the ET1 if you prefer, however the Particulars of Claim (PoC) tends to be a more detailed document and if properly done should be in a format similar to the template I have uploaded to this post. Remember it is only a template with some heading guidance so you will need to tailoring according and part in square brackets provide for various options of claim.

Given this is a disability discrimination claim I would suggest that under the details of claim you add sub-heading relating to detriments under the 6 categories or those that are specifically relevant. Each sub-heading should have the detriments set out in chronological order refer back to my post #6 for more detail.

Rich text format is how you save the Particular of Claim document in order to be able to upload it together with your ET1 form.

[safehouse]

Thank you so much Ula - that template is incredibly helpful. Others I've found online were not geared towards disability discrimination. Thank you for gearing it towards this case. Have a good weekend!

[ULA]

Glad this was helpful.

Any more questions as you work through this claim on behalf of your wife just come to this same thread.

[safehouse]

I am going through the PDF version of the form so I can see any information in advance that I might need to gather.

There is a section where you can tick any pay you feel you are owed.

We are going to make the case that X should not have been put on reduced pay during a period of sickness absence - there is case law for this pay being reinstated where the sickness was caused by failure to make reasonable adjustments.

There is a box to tick for "arrears of pay" and a box for "other payments" amongst other boxes that definitely don't apply.

Would this count as "arrears of pay"?

Thanks

[ULA]

Either of the options have have stated could be applicable depending on whether the deductions were in line with the sick pay policy?

[safehouse]

I am going through the PDF version of the form so I can see any information in advance that I might need to gather.

There is a section where you can tick any pay you feel you are owed.

We are going to make the case that X should not have been put on reduced pay during a period of sickness absence - there is case law for this pay being reinstated where the sickness was caused by failure to make reasonable adjustments.

There is a box to tick for "arrears of pay" and a box for "other payments" amongst other boxes that definitely don't apply.

Would this count as "arrears of pay"?

Thanks

Yes, it is normal practice for someone to go to half pay after 6months under the sickness policy

[ULA]

In that case I would put this as Other Payment as it relates to terms under the sickness policy. In any event you will need to set out the amount and the reason why X is owed this money.