Can I defend myself with the disability act?

[Moohound70]

Re: Can I defend myself with the disability act?

Yes, that is what they are going to do.
By the time the panel comes round my long absence will have dropped off the rolling year.
They have also this week introduced a MARS scheme to cut numbers of staff with voluntary resignations, so I can't help but think they want to get rid of people, especially those with long service who are on the top of their pay scales.

This is the same trust that once had 'Superman' in charge, you may remember the news coverage of that one, he also spent I think it was £50000 on the trust credit card on moonlight cruises in Florida.

[Moohound70]

Re: Can I defend myself with the disability act?

I saw the UNISON rep today and she said the referral to panel was so ridiculous it was laughable, she will speak to the senior management in HR, as it is just a waste of senior managements time attending a panel for someone who has nearly 98% attendance. I feel a bit better and I might actually sleep tonight.

[judgemental24]

Re: Can I defend myself with the disability act?

That is the power of having Trade Union Representation

[Moohound70]

Re: Can I defend myself with the disability act?

I would urge anyone to join a union. With hindsight I should have asked to be accompanied when they escalated me to stages 1 and 2, it is not a mistake I will ever make again.

[Moohound70]

Re: Can I defend myself with the disability act?

My manager has drafted a response to the letter I submitted as advised by Mariefab, and she said she was going to show it to the HR person responsible for our department before she sent it me.

[mariefab]

Re: Can I defend myself with the disability act?

Do you have any idea what the letter says?

[Moohound70]

Re: Can I defend myself with the disability act?

I think it will say I have not been discriminated against and tough luck the panel is going ahead anyway in not so many words.

The OH doctor said it was a misapplication of the policy and I told them he has said this but they took no notice.

My manager has been supportive in a way but in other ways was a bit patronising and flippant.

Got my official invitation to panel in the post today they sent two copies for some reason, both by registered post.

[Moohound70]

Re: Can I defend myself with the disability act?

I have read the grievance policy today and is says you can't raise grievances regarding the sickness policy and that there is an appeal process instead, it seems that you can only appeal the outcome of the panel if they dismiss you. I have not been offered the opportunity to appeal at any stage so far.

[mariefab]

Re: Can I defend myself with the disability act?

I wouldn't worry about HR saying they haven't contravened the Equality Act or your manager writing that you haven't been discriminated against. They're unlikely to acknowledge that they have.
(Do make a note of who (in HR) said that and when though.)
In a way it's helpful because it's further evidence that disability discrimination has been brought to their attention, and disregarded.

Although any grievance you raised at present would be a complaint of discrimination rather than complaining about the sickness poicy; I think that, given their blinkered approach so far, they'd be likely to refuse to permit it to progress.
Frankly, you're under enough stress already so I don't consider that it would help if you were to have to fight them on two fronts. So, it's probably best to scrap my grievance idea and focus on preparing for the sickness absence meeting.

Have you already had any informal or written warnings since your return to work last year?
If so, what kind?

Do you have a complete copy of the Managing absence policy/procedure?

[Moohound70]

Re: Can I defend myself with the disability act?

I do have a copy of the managing sickness policy and it briefly mentions disability, I have had a letter saying I was on stage 1 when I returned when after my initial diagnosis of Asthma and one when I was escalated to stage 2 when I had the one and a half days off when my Nana died. It was the exacerbation of asthma and chest infection at the end of september when I had 2 days off that triggered referral to panel.

I got a reply to my letter from my manager and it just said that they had applied the policy and to use the Act as defence at the panel hearing. The Union rep was of the opinion that the policy itself was discriminatory and she said the union had opposed it when it was introduced, many other trusts have a specific separate policy for disabled workers but ours does not.

The policy states that individual targets should be used for disabled workers and I believe the equality act says that provisions should be made to accommodate disabled workers, there have been no provisions or individual targets made for me, OH just said not to breathe in formaldehyde fumes and laser smoke, but that is just health and safety applicable to everyone.

I have excellent qualification and skills and finding another job would really not be a problem, I think it is having my health records discussed by a bunch of strangers that has upset me so much, we take great pains to ensure the privacy and dignity of our patients is preserved and respected, but I feel mine has been disregarded.

I waiting to hear from the union rep again, she said she was going to speak to HR management about the panel being a waste of senior managements time, especially after half of the finance staff and most of the catering staff are being made redundant and replaced with vending machines apparently, so they might have more urgent issues to deal with.

[mariefab]

Re: Can I defend myself with the disability act?

Can you post the managing sickness policy here (or pm itto me if you prefer)?

Ha! Quite an admission from your manager. If, as they contend, that you haven't been discriminated against the Equality Act wouldn't be of any use to you.

You said earlier that OH had said something about avoiding inhaling irritants and taking holiday in autumn/winter. This was in the paragraph that you also mentioned reasonable adjustments.
What were the suggested reasonable adjustments and when were they implemented?

[Moohound70]

Re: Can I defend myself with the disability act?

The reasonable adjustments were avoiding respiratory irritants, which everyone should do anyway and to wear a mask, I work in an operating theatre I wear a mask anyway, the masks keep blood splashes off your face and eyes they don't stop anything else, they would have to supply me with (expensive) filter masks that we use for tuberculosis patients to genuinely filter out respiratory irritants.

The asthma can be set off by something one day and not another, sometimes cats make me wheeze other times I am fine, it depends on how irritable your lungs are at that moment. I am waiting for allergy and immune system testing.

They also said to take more holiday in Autumn and Winter, but the UNISON rep said they can't tell you when to take your holidays, all my holidays are booked already as per annual leave policy, so I have not had the opportunity to do this if I wanted to.

I will try to email myself the policy tomorrow.

I did a search and looked at other trusts sickness absence policies and our was significantly less lenient in the number of days sick allowed before triggering the different stages.

I appreciate you have to have these policies in place, but I have been made to feel like a shirker when I work as hard as anyone. I am just getting really fed up with it all, I just want to get on with my job.

[mariefab]

Re: Can I defend myself with the disability act?

Those steps from OH are not reasonable adjustments.
They are simply suggestions about how to manage asthma yourself.

A reasonable adjustment occurs when an employer actually does something.
For example: altering a policy or providing an expensive filter mask.

[Moohound70]

Re: Can I defend myself with the disability act?

Would it be worth pointing out in writing that they have done nothing to help me in the workplace?

I get the impression that because my asthma is not 'obvious' it is disregarded, but it affects my life every day.

[mariefab]

Re: Can I defend myself with the disability act?

I'm confident that you'll be pointing out many things, in writing, when you attend the panel hearing. You can use the oppotunity to your advantage to teach them how they should deal with you in future, starting with...

Reasonable Adjustments s.20
It seems that they've interpreted reasonable adjustments as meaning 'things that the employee should do to reduce sickness absence'.
An employer has a positive duty to make reasonable adjustments in order to avoid comparative disadvantages to disabled employees.
They can't wait for an employee to ask for things. The duty is on them and applies from the date that they have actual or constructive knowledge of the disability. In your case the latest date would have been your return to work after your 8 week absence. (I'm assuming that there was a back to work meeting at which they were informed of anything they didn't already know.)
Failure to make reasonable adjustments is disability discrimination.

Under the old DDA one example of a reasonable adjustment was 'allowing him to be absent during working or training hours for rehabilitation assessment or treatment'.
However case law established that that didn't mean that employers couldn't subject disabled employees to their absence management procedures because otherwise employers would potentially never be able to dismiss an employee with a disabilty for sickness absence even if they'd been off for years.
(s.15 will be used to attack their application of the policy. We'll explore that later.)
　
Because it's a comparative exercise, the most you can get from a reasonable adjustment in this regard is some flexibility in the triggers or percentages.
You've had 1 period of absence due to a chest infection. I assume that someone with asthma would be more susceptible to respiratory infections than others. Generally people with disabilities would be expected to have more sickness absence than the non-disabled. So, this flexibility is one reasonable adjustment you should ask for. Your union rep is likely to know what they'll agree to. (So, ask for a bit more)

How did they suggest that you avoid respiratory irritants?
Did they say that others should deal with them or you should carry on doing so while wearing an ineffective mask?

Can you think of any changes they could make to assist you?
Things like altering working hours, providing aids/equipment, allocating some duties to others etc.