Can I defend myself with the disability act?

[Moohound70]

Hi,

I am a senior theatre nurse with 15 years service, I was diagnosed with late onset (age 43) asthma last November and I had 8 weeks off work and 2 hospital admissions before getting a diagnosis.

This year I have had one day off with a migraine, 1.5 days off when my grandmother died,and 2 days off with exacerbation of asthma and a chest infection, and I have triggered the trusts dismissal sickness panel process.

This has in turn triggered severe anxiety panic attacks and insomnia as well as suicidal thoughts and I am currently taking sleeping medication and antidepressants, the trust has arranged some counselling for me, my line manager has been supportive and does not want to lose my clinical expertise. I have continued to attend work, and I work safely and effectively, despite having what used to be called a 'nervous breakdown'

Is there anything in the Equality Act or Disability Act that I can use to defend myself through this process?

I have very little understanding of the law outside health and safety and consent to treatment issues. I have contacted my union and I am waiting for a reply.

Kind Regards

[judgemental24]

Re: Can I defend myself with the disability act?

Has Occupational Health stated in a report that they consider your condition a disability covered under the act?

[Moohound70]

Re: Can I defend myself with the disability act?

Yes they said asthma was a disability, but they said they couldn't influence the outcome of the panel.

[judgemental24]

Re: Can I defend myself with the disability act?

Thats fine

If you have it in writing through an Occupational Health report that you have a disability under the act then you have "Protected Characteristics"

The employer is now under statutory duty to make reasonable adjustments while at work to reasonably enable you to carry out your duties

Those reasonable adjustments also carry over into the attendance procedure.

It is how you define reasonable is the sticking point as every situation is different and size of the employer.

Your best best is to start looking at "Protected Characteristics"

Disability: The Act applies to a range of people that have a condition (physical or mental) which has a significant and long-term adverse effect on their ability to carry out ‘normal’ day-to-day activities. This protection also applies to people that have been diagnosed with a progressive illness such as HIV or cancer.

I would have a word with the local trade union rep, even if you are not a member

[Moohound70]

Re: Can I defend myself with the disability act?

Occupational health have given me advice and made suggestions for reasonable adjustments, but I have been escalated to stage 3 before they had chance to be implemented.

What I find most frustrating and upsetting is that on the 11th of November this year, my long absence when I was diagnosed will 'drop off' the rolling year, and I will have attendance of 97.8% and the trusts target is 96.1%

[judgemental24]

Re: Can I defend myself with the disability act?

You need to inform the disciplinary meeting that you are covered under the Equality Act 2010 as a disability and have protected characteristics

What happens with protected characteristics and absence is that absence days relating to the disability are not usually counted wihin the absence procedure. Though they can still hold a disciplinary and talk to you about the absence.

You need to be informing them in writing about your disability and most important covered under the act. This needs to be raised at any attendance meetings as well and minuted

[Moohound70]

Re: Can I defend myself with the disability act?

I will do that and I will, and I will contact the union again and arrange a meeting.

It all seems very arbitrary, if I had had the same number of days off but if they were spread out differently I would not be in this position.

[mariefab]

Re: Can I defend myself with the disability act?

I must say that I find your employer's current actions surprising.
Can you answer these questions?

1. Is your 15 years service with the same Trust?
2. What is your history with this employer? Have you been subject to sickness in earlier years? If so, when?
3. When was your employer informed of your diagnosis?
4. When did they first send you to OH with a view to making reasonable adjustments?
5. Just to be clear... Do you and your employer have a written document stating that your medical condition is a disability.

[mariefab]

Re: Can I defend myself with the disability act?

In 2 above I meant sickness absence procedures.

[Moohound70]

Re: Can I defend myself with the disability act?

In 2013 I had 8 weeks off when my dad died of cancer, yes it is 15 years with the same trust, the policy has been radically changed in the last couple of years and it is very hard to get of the policy once you are on it, because it is done on a percentage one day will trigger is you work long days like I do, people who work 7.5 hours a day 5 days a week would not trigger the next stage but I do 10 hour days and one day will trigger. Hardly anyone ever used to have to go to panel now it seems not uncommon. I informed my line manger I had late onset asthma last October.

It was in September when the reasonable adjustments were recommended this is when I had 2 days off with the chest infection but I was escalated to panel. They suggested that I take more annual leave in the autumn and winter as cold and damp make my asthma worse and they suggested I avoid contact with formaldehyde which is a known respiratory irritant and also I avoid plaster of Paris dust as that has been a trigger for my bronchospasm as well.

I don't think there is anything in writing about the asthma being a disability.

I am finding the whole thing very upsetting, my husband said I should resign and join an agency instead, as they are shooting themselves in the foot especially as I am rostered to do 4 on calls on Christmas bank holidays.

I spoke informally to a union representative and she said you are expected to apologise for being off sick to the panel.

[mariefab]

Re: Can I defend myself with the disability act?

If you have a disability dismissing you for this sickness absence would be both unfair and discriminatory.
But, obviously it would be better to address this before things progress that far.

So, let's see if we can confirm that you qualify as having a disability under the Equality Act.

To paraphrase the definition you need to have:
(1) an impairment
(2) that has a long term
(3) substantial adverse effect
(4) on your ability to carry out normal day-to-day activities.

We can tick (1) for late onset asthma.

(2) I assume that it will be life long.
If you will be perfectly fine for perhaps long periods but it could well happen that you will have recurring episodes of illness as a result of your impairment in future, this is regarded as continuous.

(3) Substantial, in this context, means more than minor or trivial.
I know very little about asthma. Perhaps you could let us know what the adverse effects would be. I'm guessing breathing difficulties, but as I say I really don't know.
If you are having any medical treatment for your asthma any assessment of adverse effects will be on what the effects would be if you were not taking the treatment.

(4) This will largely depend on what you can tell us about the effects of your asthma without treatment.

[judgemental24]

Re: Can I defend myself with the disability act?

It is worth noting Occupational Health can Consider and Likely your disability to be covered under the Equality Act

Only an Employment Tribunal can say for definite

[Moohound70]

Re: Can I defend myself with the disability act?

Thank you for all the replies, I do feel somewhat reassured by the advice and information.

As for the asthma, The airways go into spasm and you develop wheezy breathlessness, without the inhaled steroid I would have this every day. Before I saw the resiratory physician I had productive cough every morning and needed to use my reliever inhaler everyday, since he changed my treatment I have been much better on a slightly higher dose of inhaled steroid, and only need the ventolin reliever occasionally. I have never smoked by the way.

When I was hospitalised before I had a proper diagnosis I went into massive bronchospam and required oxygen, ventolin nebulisers and intravenous steroid injections followed by a course of oral steroids. People die everyday from asthma attacks.

[mariefab]

Re: Can I defend myself with the disability act?

The 4 part test outlined in post #11 is commonly used by Employment Tribunals in assessing disabilty.
(1) & (2) are already ticked.
(3) Without your steroid preventer inhaler you would certainly experience a substantial adverse effect.
(4) Day-to-day activities include (but are not limited to) things like walking, shopping, carrying out household tasks, climbing stairs. I would expect your ability to do any of these to be compromised by an inability to breathe.

I must say that I'm astonished that an NHS Trust, with all the resources at their command, could escalate the process this far. Occupational Health works for them, not you. So if OH say that you have a disability that knowledge is imported to your employer. They must either be idiots or determined to give you a lot of money.

The 8 week absence you had last year was a period combining sickness assessment, diagnosis and treatment of a disability.
It was a unique period inasmuch as once you had been placed on an appropriate treatment regime it would be unlikely that you (or your employer) would expect that you would continue to need to take a great deal of time off sick. As, indeed, your minimal subsequent absence has proved.

An employer (that had a clue that the Equality Act existed) would call that 8 week absence disability related leave and would not use it to trigger a process that could lead to dismissal.

What they are proposing is discrimination arising from disability.
http://www.legislation.gov.uk/ukpga/2010/15/section/15

The 'something' in (a) is the 8 week period of leave.
In (b) the employer would need to evidence what their legitimate aim is, that following this process actually achieves the aim, that there is no reasonable alternative and that the aim is important and beneficial when compared to the discriminatory effect on you.
Mere 'normal policy', or the cost of sickness absence is not enough.

As your employer appears to be somewhat challenged; I suggest that you inform them, in writing,
That you believe you have a disability.
In the fullest terms describe the detrimental effects that the Trusts dismissal sickness panel process has had on you to date.
Ask why they are following this route.
Don't wait until the next meeting and copy it to the panel, OH and anyone else that seems appropriate.

- - - Updated - - -

Apologies for expressing myself so forcefully. I'm pretty cross about this situation.

[judgemental24]

Re: Can I defend myself with the disability act?

For an NHS Employers as well

Beggers belief