Disability

[angelicangel]

I am looking for some advice as I may be appealing against an Employment Tribunal's judgement.

I suffer from depression and social anxiety (ICD 10 Code F32.1 and the only grounds I failed the disability test was based on the deduced effect. The problem I have is that I provided evidence from a consultant psychiatrist that even with medication I was likely to have great difficulty in continuing with ordinary activities - I was treatment resistant - which was why I was referred to the psychiatrist in the first place and he even recommends 'that if the medication is not adequate (maximum dose permitted) after an adequate length of time to change my medication in line with BNF guidelines.

Can anyone shed some light on this to help me understand?

Thanks

[Kati]

Re: Disability

:bump:ing [MENTION=26290]mariefab[/MENTION] xx

[mariefab]

Re: Disability

I provided evidence from a consultant psychiatrist that even with medication I was likely to have great difficulty in continuing with ordinary activities

Did the evidence that you put before the Tribunal follow up on that?
Because that statement is a starting point, it just speaks of likelihood.
After this you should have provided evidence showing exactly what kind of difficulties you have with various examples of normal day-to-day activities because of your disability. Preferably things that should have been noticed by your employer.

[angelicangel]

Re: Disability

I did attempt to mariefab but the judge just said he would take the statement as read and didn't ask any questions. The Respondent and judge asked one question of me on my disability, had I ceased taking my medication at any time ...that was it!

OH had stated ' The symptoms of the condition seem significant and are affecting ***** sleep pattern, her concentration during the day and her ability to leave the house unaided' and 'has difficulty in making decisions and working through issues logically' and made the recommendation that my employer progress as if I was covered by the EqA 2010.

Thank you for your help.

[mariefab]

Re: Disability

What exactly did the Tribunal give as the reason for their decision that you did not have a disability?
When the Judge said that he would take the statement as read, was he referring to the phychiartrist's letter?
When your employer received the OH report did they disagree with it's content?
Was the OH report put before the Tribunal?

[angelicangel]

Re: Disability

I don't know the reason as yet, whilst the judgement was received last week, I am still waiting for the reasons - the deduced effect was the main argument in the Respondent's closing submissions and I had not provided evidence on the impact on my day-to-day activities but this was within the statement that was taken as read.

The statement was from my mother detailing how she had supported me and what the impact of my depression had on my day-to day activities. I wasn't given the opportunity to cross examine her on that statement.

My employer ignored me when they received the OH report, at no time did they advise they disputed the content, whilst OH suggested reasonable adjustments, this was ignored also, even at my own request that they be considered ...by this time I was off sick.

The OH report was in evidence and in my witness statement and closing submissions, no questions were asked on the content but either the Judge or the Respondent.

I hope this helps, sorry if I appear in a muddle but I am answering as best I can.

[NWHC]

Re: Disability

What exactly are you claiming for here if you don't mind me asking

It is an employment Tribunal
Are you saying that you employer is failing to make adequate adjustments
or
Are you appealing a decision to dismiss you

[angelicangel]

Re: Disability

Hi NWHC

I was claiming for failure to make reasonable adjustments, I couldn't return to work without the reasonable adjustments I needed to accommodate a return to work, as recommended by OH - through my employer ignoring me I had no choice but to remain off sick, which resulted in dismissal (which I was also claiming).

All my claims hung on whether I was found to be disabled or not, OH recommended my employer proceed as if I was covered by EqA 2010, EHRC considered all the evidence and advised me to contact ACAS and take legal advice, which I did, again in my favour-my disability status was included in the full merits hearing which resulted in them finding me not disabled and my claims dismissed.

I have been treated for PTSD symptoms due to what happened to me at work, sorry if I am not explaining myself properly but I came on here as part of my issue is my brain is constantly trying to make sense of it all, can't shut if off so this is my attempt to try and help me understand before I drive myself mad and hit exhaustion as my brain goes into overdrive when I attempt to go to sleep.

[mariefab]

Re: Disability

When you were asked whether you had ceased taking your medication, at any time, what was your answer?

FYI, the phrase 'deduced effect' is used to describe what the effect would be if you were not taking your medication.

So, if you provide evidence that, if you didn't take your medication, your impairment would have a substantial adverse effect on your ability to carry out normal day-to-day activities = you have a disability.

[Openlaw15]

Re: Disability

When you were asked whether you had ceased taking your medication, at any time, what was your answer?

FYI, the phrase 'deduced effect' is used to describe what the effect would be if you were not taking your medication.

So, if you provide evidence that, if you didn't take your medication, your impairment would have a substantial adverse effect on your ability to carry out normal day-to-day activities = you have a disability.

No this is not right; mental health is a different creature to conventional disabilities, as it's the tribunal's decision whether the evidence provided amounts to a disability matching ICD10 or DSM equivalent. The ICD10 is a good start to indicate that the mental health problems are a disability and medically recognised in some circumstances. The problem with this though is that there are wide variations of particular mental health problems and F32.1 paragraph is no exception, ie some mild, some moderate, some acute. The tribunal has to decide on the facts whether the disability claimed matches the OP's facts. A consultant psychiatrist's sparse/ limited statement to a tribunal judge is nothing more than hearsay unless that consultant psychiatrist is made available for cross examination by the opponent or the opponent's equivalent medical expert at the hearing. I think this is why the disability element failed.

[angelicangel]

Re: Disability

I didn't stop taking my medication. In actual fact I was proving to be treatment resistant, they kept increasing the dose until I was on the maximum, eventually referring me to a psychiatrist as I just wasn't responding to the medication. The psychiatrist recommending changing my medication in line with IBM recommendations.

I was eventually referred to undertake Eye Movement Desensitisation and Reprocessing (EMDR) treatment for PTSD symptoms, which was when I began to respond to treatment - the deduced effect didn't come into the equation until then, by which time I had been dismissed. This is what confuses me, there was no deduced effect so maybe this was my error but my GP referred me to the psychiatrist as there was no deduced effect by his reasoning as I wasn't responding to medication ...that is why I am so confused.

I was diagnosed with moderate depression ICD10 Code F32.1 and social anxiety if that helps.

Thank you for all your help, it really is appreciated.

[Noah]

Re: Disability

Openlaw
I appreciate that you meant no harm BUT

mental health is a conventional disability , please do not add to the stigma that MH suffers already face by people who think it is a try on.

I suspect you meant physical disabilities or even visible disabilities

[mariefab]

Re: Disability

The old requirement that, for the purpose of establishing disability, a mental health condition must be 'clinically well recognised' or apppear on a list was repealed in 2005.
Since then mental impairments have been treated in exactly the same way as physical impairments.

Openlaw, could you explain what you think is 'not right' in post#9.

[mariefab]

Re: Disability

I don't know the reason as yet, whilst the judgement was received last week, I am still waiting for the reasons -

Did you request written reasons at the hearing?
If so, do you have confirmation that written reasons will be sent to you after the Judgement?

I ask because if you're not certain you must ask for them, in writing, within 14 days of the date that the Judgement was sent to you.

[angelicangel]

Re: Disability

I have requested them Mariefab. I was initially told they would be sent with the judgement, then when I got the judgement I was advised they would follow in due course - no idea how long that will be. It has taken taken 11 months to receive the judgement alone after conclusion of the full merits hearing due to the judges other commitments so it could be a long wait.