Osteoarthritis and the Equality Act 2010

[LindaLDean]

Thank you for taking the time to read this, I really hope you are able to help out on this one.

I have been working for a well known employer in the UK for just over six years now and my GP has diagnosed me with having Osteoarthritis in my right knee.

My knee has endured a lot of wear, due to me sustaining a cartilage injury 14 to 15 years ago, I had torn cartilage removed through two arthroscpic surgeries around that time.

I have to be absolutely honest and say that from when I had surgery (albeit recovery time) to when I started work with my employer l my knee was fine.

Recently, (within the last three months), I sustained a trip injury, whilst on duty, (not on work premises) which caused me to fall forward awkwardly on my right knee, causing pain, on return to the office I reported the accident, had a first aider examine me, went to hospital the next day, went through all the correct proceedures etc, what was thought to be medial ligament damage through constant pain has now been diagnosed thanks to an MRI Scan as degenerative Osteoarthritis. I am less than 40 years old and to date, have been on sick leave since the trip injury.

I have asked my GP whether I am officially disabled, as I now am unable to walk after around 15 to 20 minutes, after which pain causes me to stop walking, staying off my feet can be just as bad as I am not exercising it, can have pain in the knee when I wake up, maybe because it's not being exercised and stiffens up . The pain does vary from day to day and is not predictable, my GP seems to be evading the question and has refered me to a knee specialist at the musculoskeletal department at our city hospital.

Occupational Health (ATOS) are involved and through several telephone interviews agree that I have Osteoarthrtis and am fit to work with amended duties in mind - sitting down in the office etc, however ATOS deem my condition not to be covered under the Equality Act 2010, I am disputing this as day to day activities, for me are restricted, as after maybe 15 to 20 minutes walking, due to no medial cartilage (and the MRI scan confirms this) I start to incur pain in the right knee.

For example from my house to town is around 25 minutes away on foot, whilst before I could walk there and back - now I sometimes have to get a cab or bus as after a while the pain prevents me from walking and have to rest, although how ATOS are able to diagnose Osteoathritis over the telephone is completely beyond me, my GP also takes a dim view regarding ATOS' methods and practices.

I have contacted ATOS regarding this and they are very quick and keen to decide I am not covered under the old DDA act they are unable to admit that I am covered until my line manager at work contacts ATOS and confirm that I am covered under the Equality Act with my condition?, my line manager does have a copy of all the unfit to work 'sick notes' my GP has written out and on the latest one my GP has declared me unfit to work because of Osteoarthritis, with this surely I am covered under the Equality Act 2010?

My question to you is this, am I disabled?, as I have been off work for 12 weeks now my line manager and his manager at work are now trying to dismiss me through 'ill health retirement', a lump sum payment as there isn't any full time work available at that office to satisy my condition - no sit down jobs so to speak.

In a nutshell I just want what I am entiltled to, and don't want to be palmed off with the minimum, forearmed is forewarned I guess, in your experience have you had any similar situations like this you can refer to and give me an answer, I have found the following link:

http://www.dls.org.uk/Advice/Factshe...lity%20Act.pdf


With the questions it asks I feel I fit the categories within it?

I do feel as if I am being shoved into a corner with no alternative options, I visited Citizens Advice, they did what they could but couldn't give me a definitive answer, they gave me a few numbers to call, ACAS, Payments & Work Rights etc, and they said it all depends on my employers "Long Term Sickness Proceedure or Policy", no one seems to be able to tell me what I NEED to know?

Thanks for your time and look forward to hearing from you shortly.

[Inca]

Re: Osteoarthritis and the Equality Act 2010

Hi & Welcome to LegalBeagles......I'm sure someone will be able to help you with this but please bear with us..it's Sunday

[charitynjw]

Re: Osteoarthritis and the Equality Act 2010

Hi LindaLDean

Are you 'disabled' as per the Equality Act? Probably yes, especially if the condition is longterm or potentially recurrent.

But whether you would win at an Employment Tribunal is a different matter (I know that's not what you asked, but it needs addressing)

Your employer has acted correctly in involving OH, & has explored the possibility of 'reasonable adjustments' (other work in the office).
But any adjustments would have to be within reason (ie the more costly the adjustment, the less reasonable).

Long-term illness may be a justification for fair dismissal, especially if your prognosis is uncertain.

They are unlikely to agree that you are disabled, as to do so might place them in a precarious position.
I would think that they would fight it vigorously at ET.

But the only viewpoint that counts is that of the ET.

Btw, ET's are implementing fees from 29th July 2013.
For unfair dismissal or discrimination claims, the issue (upfront) fee will be £250, followed by a hearing fee of £950.

[Eloise01]

Re: Osteoarthritis and the Equality Act 2010

You won't get a definitive answer to whether you are disabled or not - only a tribunal can answer that. But you are focussing on the wrong question because whether you are disabled or not, in this circumstance, is not relevant. Being disabled gives you no more rights than anyone else, and this is something that people forget. You have been off work on long term sickness and the employer has involved occupational health in an assessment as to your ability to do your job. You and they, and your own GP, agree you cannot. The employer therefore should look to whether there is alternative employment available - and this need not be at your current rate of pay, hours or conditions - and offer you such work if it exists. Your employer says such work does not exist, and unless you can show otherwise, then they are justified in beginning capability processes which will result in dismissal on ill health grounds.

If they do so, since you have worked for the employer for six years, you are entitled to six weeks fully paid notice (statutory notice) UNLESS your contractual notice is more than a week more than statutory notice. Unfortunately, if contractual notice is seven weeks or more, then your entitlement to notice pay is restricted to whatever sick pay arrangements the employer has in place, which may be only SSP.