Disability Discrimination or Unfair Dismissal ?

[Raydon71]

I want to know if I have a case.

I was recently made redundant by way of Attendance criteria, which I stated at the time because of my type 1 diabetes was discrimination but he said that was the only way he could differentiate between my colleague and I. I challenged this in a meeting with HR Director and she said it was perfectly acceptable for companies to use attendance as a criteria. Now in a follow up letter she said she is disregarding the attendance criteria and using statistical analysis as reason for making redundancy, as she has concluded after some research and (me quoting the disability discrimination act to her), that it's unfair to base my redundancy on my attendance. Surely they are not able to back track like this and just come up with another excuse, when i was told that my colleague offered them more stability than me. This is a big company that i work for.

Thankyou in advance

 

[cugila]

Hi.

On the face of it you MAY well have a case to put before an Industrial Tribunal. None of us here are experts in Employment Law which can be a minefield. You definitely need 'EXPERT' advice not just anecdotes as here in my post.

My advice to you is to first of all visit your local CAB (Citizen's Advice Bureau) and get advice from them. You might then have to consult an Employment Law Solicitor for up to date and expert advice relevant to your circumstances. This can in most cases all be free.

Do you have a Home Insurance Policy with Legal Expenses Cover ? If so contact them ASAP. I did this with my son a few years back when he had a problem regarding so called 'redundancy' and dismissal. Upshot was, we paid £35 excess, had the services of a Barrister and the case went to a Tribunal. Son won his case and was given compensation. Many thousands of pounds worth of legal fees all paid for by Home Insurance. Worth a shot ??

 

[hanadr]

Raydon
I'd get in touch with Diabetes UK

 

[Pandy54]

Hi

It would appear that you may have been chosen unfairly for redundancy. The assessment matrix used to decide who goes and who stays should be published to all the people involved before the selection takes place. The fact that they moved the goalposts afterwards suggests a little - erm - manipulation going on here!

You may be able to take your ex employer to Tribunal for unfair dismissal but I suggest that you get some professional support before you do. CAB can be helpful. Or, if you join a union, they will support you. Tribunals these days are indistinguishable from courts of law - fraught with things that could trip you up.

What you have to weigh up though, is the cost of taking the step. You are unlikely to get your job back and if you win your case, the tribunal may very well take into account the payments made to you within the redundancy settlement - more likely if it was enhanced over and above the statutory minimum. You may get some help from your insurance company, will it affect next years premium?

Sorry if this sounds a little negative. You have right on your side, it seems that an injustice has been done. But to right that wrong, you have a lot of work to do, put in a great deal of time and effort and on top of that, it may cost you real money. If you are prepared for that - then go for it! The law may say it supports equality, the reality is that some employers often find a way to get around the law...

Unfortunately, I am usually on the other side of the table, so I can tell you that your ex employer will have prepared their case very thoroughly before going to tribunal; they will also have some very expensive legal assistance. Most likely, they will agree to an 'out of court settlement' days before the hearing. You could shortcut the process by approaching ACAS now. They are very good at interceding and forging an amicable agreement.

Good Luck!

 

[Raydon71]

Hi Pandy Thank you for your input and you and you are right you are negative!! What would happen to the DDA act if everyone just let Big companies Discriminate against them? I thought it was meant to protect us?

I have got a solicitor involved of which is included with my house insurance. I did receive the statutory minimum redundancy which I would gladly give to the solicitor just to name and shame this company. Because not everyone will have the fight like I have, because I WILL take this all the way and there WILL NO settlement' outside court.

I wouldn’t want to work for a company who treats someone with a disability like this, so it’s not about getting my job back or it’s not about the money. It’s about doing what is right.

 

[kegstore]

Raydon71 - don't be put off taking them to Tribunal by anyone. The DDA DOES work - despite unlimited resources even "big companies" make very silly mistakes sometimes, and pay through the nose for doing so. Trust me, it's worth exploring all avenues, and you seem to have the right attitude to see this through!

 

[IanS]

I am not an expert on employment law but my other half is.

The one thing you should do before persuing an ET claim is to file a formal grievance with your employer. Although not essential to pursuing an unfair dismissal claim, it can only strengthen your case. It is important that you emphasise dicscrimination on the grounds of disability in your greivance. I note that you have already been made redundant so I am not sure if you can do this retrospectively. Your employer is entitled to use your attendance record when considering redundancy, but the question arises as to whether your lack of attendance is reasonable given your disability and could fall in with 'reasonable adjustments'.

That your employer has abandoned one reason and fallen back on another will not help their case in the slightest. It is evidence that the redundancy has not been properly carried out. If you can find evidence that the employer has replaced you (or is intending to replace you) then you have a very strong case indeed as the redundancy would be sham.

My own employer, for example, has accepted that I will be missing for an afternoon or two per month (at present) and regards it as reasonable. The company's doctor has also, off her own back, imposed limits on what I can be called upon to do (diabetes isn't my only problem). ETs do not credit small employers with any more priviledges than large employers.

It is also worth noting that if you go to an ET with a claim alleging discrimination on the grounds of disability, that the normal £55,000 limit on compensation awards does not apply. Your employer will be gambling 'with the roof off' as there is no limit on compensation awards. The (current) government is very keen to enforce the rights of the disabled (and other groups) and 6 figure awards are often made. As a result, tribunals do look sympathetically at the dismissed employee in such cases and they do enjoy an advantage over the employer. The attendant publicity of a successful action isn't good for the employer either. Your employer's personell department should be well aware of this.

It must be worth a shot if only to give the directors of your company a sleepless night or two.

Hope that is of help.

IanS.

 

[noblehead]

IanS,

Thanks for a great reply on this subject. Hope this is useful to Raydon71.

I may need to call upon such great advice quite soon, so I shall take on board what you have written.

Regards

Nigel

 

[Raydon71]

Thankyou Ian and everyone else for your support and all the information, I have already raised a greivance with the HR director and in that meeting she kept on going back to the attendance criteria to which I said was Discrimination.She said that was the company policy to look at attendance in the criteria that was set out.It was only after the meeting (maybe a week later) when she said in an email to me they were going to DISREGARD the attendance criteria. (which was the only reason at the time which they could seperate me and my colleague) and choose another one.Which is calls logged my field techs (IT Feild Technician which is was my Job) Which is also a sham because she has stated my Colleague has call stats logged over the same amount of time that show on average he has 14 calls logged compaired to my 9.6 but what she failed to do was take into consideration the amount of time I was off and deduct these from my colleagues.Which takes him to less calls logged than me.

Regards

Raydon

 

[IanS]

I would suggest that changing the selection criterea once the ball is in play is good evidence that the selection is arbitrary rather than based on good (and lawful) criteria and was designed to target a specific individual (you). That is unlawful.

While nothing is ever 100% certain in an Employment Tribunal, the change of criterea once you knocked the original on the head is helpful to your case.

You have little to lose by going to an ET and much to gain. Once the full reality of the situation dawns on your ex employer they may even make you an out of tribunal offer (often happens in no limit claims). You have to balance the offer against the liklihood of actually winning and the likely award made plus the effort and inconvenience of actually presenting a case to a tribunal. Although relatively informal some people do find it a daunting experience.

All this is purely opinion on my part.

IanS.

 

[kegstore]

Raydon, the fact your HR director states that the criteria are "company policy" does not make it right, or the company exempt from action. This tends to be how such policy is changed - by testing it in a formal sense. All power to you!

I was offered (what I considered to be) a very generous out-of-tribunal settlement figure in my case. I'm very glad I turned it down, as the eventual tribunal award was over 4x that offered. Employment Law is a minefield however, make sure you have a good source of professional advice, like I did!

 

[Raydon71]

Just a quick update.

I am currently along with my Solicitors taking my ex employer to an Employment Tribunal, tell you the truth I can’t wait becausce I want there name all over the papers to show big companies WILL NOT be able to get away with this.

I will keep you informed.

Thank you again for those who support me
.

 

[secret_witch]

Good luck with this. I'm currently under an attendance review with my employer (yet another big compnay) but at the moment I've got some Union help at work whilst I go through this.

This kind of thing is more stressful than actually having diabetes! I'm trying to make somebody undferstand things about diabetes but they're just not listening.

Anyway as I said I hope things go well for you and I hope your next update is positive!

 

[Raydon71]

Hi Secret-Witch I am currently in the process along with my solicitors of going to an Idustrial Tribunal and am waiting for my ex employee to come back with a response,but they are dragging their heals so we have lodge it regardless.It is not about the money for me I want them to sit up and admit what they have done is wrong even if it costs them a few sleepless nights and a few thousand pound in fees that will make me happy.

I will keep you posted of what is happening

Regards

 

[secret_witch]

Hello,

Yeah trying to get them to admit to something is very difficult...they'll try every trick in the book.

I've just got out of a meeting with occupational health who have said that HR have started to consider asking me to reduce my hours of work... which obviously means pay too. I wouldn't mind if I'd had a number of weeks off since November but I've had 6 days off.

Chin up and carry on fighting them!!

 

[clairej1]

I am also pursuing a claim for discrimination - being the only person to be sent to occupational health after hitting the absence management trigger point, and no reasonable adjustments being made, then the only person being managed under the absence policy even though many other colleagues had a worse attendance record, and of course the only diabetic..... I raised a grievance at the beginning of February and to date have had no outcome even though there have been 2 meetings and their own policy states an outcome will be communicated within 5 days of the meeting. All tactics to hinder the ET case. Filed last week anyway to ensure not going out of time and requested a stay. I had less than a year's service so cannot claim constructive dismissal but as I felt I had no choice to resign because of the direct discrimination, harassment and bullying.
Haven't found much case law on type 1 discrimination but British Telecommunications v Pousson makes interesting reading.