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!

[ULA]

n20998 once you start your own thread I can then post up the template for you. It also means that any further questions you, have as you go through the ET process, can run on the same thread. Those of us advising like to have everything relating to a claim in one thread, it makes it easier to have all the info in the same place. Thanks

[n20998]

ULA, would it be possible to get a copy of the template you mentioned in post 18 please? I'm a little earlier in the process with my own case, I'm just starting to draft my ET1. I'll start a new thread probably in a couple of days if I have any questions. Many thanks.

[ULA]

You will only be able to make a claim for unfair dismissal if that can be legally justified and supported with evidence, so you cannot pre-emptively make a claim when no dismissal has taken place. So you absolutely cannot try your point (c)

Points (a) and (b) - it will entirely depend on the timing of when/if any dismissal takes place and where you are in the current ET process.

[safehouse]

I am close to submitting the ET1.

In summary, there is a long campaign of disability discrimination which has left the Claimant in a position where she has been told she should seek ill health retirement both by work's occupational health and a specialist.

At some point, it is inevitable that the employer will terminate on ill health but this will be after the ET1 is submitted.

If this happens, we would claim that the dismissal is unfair and it is discrimination arising from disability.

But how would we do this?

a. apply to amend the ET1?
b start again with a new claim with ACAS?
c. try and pre-emptively get it in there on the current ET1?

Thanks

[safehouse]

Thanks Ula!

[ULA]

What I uploaded at post #8 is quite a generic template to get you started on how to set out a PoC and was in response to assist your post #7 concerns. It was not meant to be one that dealt with the specifics of the claim as I do not know that.

Your last few posts do give me some concern about how complicated you are making this. I appreciate this is a family member you are assisting and you are naturally aggrieved at how they have been treated, however in order to give them the best support you can, you need to remain very focused and objective about what needs to be achieved at each stage of the ET process. The PoC is about setting out the the background facts, and set out what legal claims you are making and why, both clearly and succinctly.

My understanding is this is a claim for disability discrimination, under this there are potentially 6 sub-categories of discrimination. So, I do not think you have 30 claims, what you have is 30 incidents which provide the evidence to support a number of the sub-categories of discrimination claims .

I am also concerned you are including acts of discrimination that happened 4 years ago which leads to a question, why did this get left so long to make a claim, which is something that may well be asked at any ET hearing. Also highly difficult for witnesses on either side to be able to accurately recall incidents that took place 4 years ago.

In order to try and assist you in drafting the PoC specific to a disability discrimination claim I will PM you a further template. Please not that I do not normally use PM so please DO NOT respond to me this way come back to this thread if you have any questions on it.

[safehouse]

Yes, this is for the particulars of claim document - I am using the template you sent.

At an estimate, there are probably around 30 instances of discrimination across 12 specific incidents.

Some incidents constitute more than one type of discrimination.

For example, applying a normal sickness policy to a disabled person is indirect discrimination, not modifying it in the first place for the disabled person is failure to make reasonable adjustments, and if they are off sick because of their disability, that is discrimination arising from disability. So 3 instances of discrimination from one incident.

The only way to logically set these out is to take one incident at a time in chronological order and explain what types of discrimination have occurred within each incident.

I can't go claim by claim because I would be constantly repeating myself because sometimes the exact same incident generates more than one claim.

But what i really need to know is if, in the summary of claim section, I need to list all 30 claims or can say there are 7 of failure to make reasonable adjustments, 10 of indirect discrimination, 13 of discrimination arising from disability.

Otherwise, the summary of claims section is going to look like this:

1. failure to make reasonable adjustments.
2. indirect discrimination
3. failure to make reasonable adjustments
4. indirect discrimination.
5. failure to make reasonable adjustments
6. discrimination arising from disability

and so on until you have a list of 30 claims which are just repeats of the same 3 types of discrimination.

And if there are 30 instances of discrimination, how do i number/label them so they can be identified from each other when talking about them? For example, if the judge deems some are in and some are out?

Nobody would need to neccessarily understand the reasoning behind my numbering and lettering labelling system, all they would need to know is that there is a claim A1, a claim A2, a claim A3 etc. The benefit of using the "A" rather than just using claim 1, 2 , 3 is that it would be clear that this refers to incident A. But I could just call them claim 1, 2 ,3 up to 30.


Under the "Details of Claim" heading I was going to set it out like this with the following sub-headings in bold.



A. First incident (I wouldn't actually say "first incident", I would say "Claims arising from the Respondent's Actions During the Claimant's Sickness Absence")


These are the claims:

A1 - failure to make adjustments
A2 - discrimination arising from disability

These are the relevant details.

These are the legal arguments as to why this constitutes the 2 types of discrimination listed above.


B. Second Incident

These are the claims:

B1 - failure to make reasonable adjustments
B2 - indirect discrimination

These are the relevant details.

These are the legal arguments as to why this constitutes the 2 types of discrimination listed above.


C. Third incident

repeat as above etc.



The template you sent me doesn't seem to allow for multiple claims across multiple incidents as it doesn't suggest any sub-headings once you get to the "Details of Claim" heading or how to name / number them. If I don't split it into sub-sections, then it will be confusing because it's about 4 years of incidents to explain and the only logical way to split it up is by incident - so I need some way of labelling the incidents using either an alphabetical or numerical system.

I also need some way of differentiating the 30 claims from each other and identifying them which has to be some sort of numerical or alphabetical system also.

Sorry for such a long post.

[ULA]

safehouse you meed to present this in as clear a way as possible and it feels like you are potentially making this quite confusing.

Can you confirm you are setting this out in the Particulars of Claim?

When I know the answer, I can try to provide more guidance/information in how to set this out.

[safehouse]

Hi Ula

Although I haven't totalled up all the claims yet so I don't know the exact totals, there are quite a few - e.g. several cases of failure to make reasonable adjustments, several acts of discrimination arising from disability

Is it OK to put something like this as the summary of claims or do I need to list every single claim individually in the summary of claims section?

(Please ignore the formatting as it's gone haywire when I've copied and paste onto here:


Summary of Claims

5. The Claimant is bringing the following claims against the Respondent:



i. 3 instances of failure to comply with a duty to make reasonable adjustments under Sections 20-21 of the Equality Act 2010 (Claims A1, B1, C1)



ii. 3 acts of discrimination arising from disability under Section 15 of the Equality Act 2010. (Claims A2,B2, C2)



iii. 3 acts of indirect discrimination under section 19 of the Equality Act 2010 (Claims A3,B3, D1)




Also, I would like to both explain my numbering and ask if it is complete madness....

I've realised that some incidents can be more than one type of discrimination at the same time. For example, a particular incident could be failure to make reasonable adjustments AND discrimination arising from disability. So at the moment I'm assigning a letterr to the incident / event and a number to the type of discrimination for that incident. So incident A might have a claim for failure to make reasonable adjustments (Claim A1) and a Claim for discrimination arising from disability also (Claim A2).

I was then going to have later headings for each "event" like:


A. Claims Arising From the Failure of Darth Vader to Tell Luke he was his Father Earlier.


22. The Claimant is bringing the following claims against the Respondent in relation to this matter:

i. Claim A1 - Failure to make reasonable adjustments.
ii. Claim A2 - discrimination arising from disability.

Then give all the supporting points for those 2 claims.

23. Darth Vader was on duty at the Death Star.

24. Luke turned up in the Millenium Falcon.


Thanks!

[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.

[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]

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

[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.