Duty of Care

sheena farenden
Member - 60 posts

In one word Discrimination Disability and Racial. Get your cheque book out. My opinion get rid of the manager before he bankrupts your company. I would advise taking legal advice and quickly as this person seems even from the few words you have given a very good case.

Under DDA reasonable adjustments must be made this current manager cannot argue they are not reasonable when the previous manager felt they were for 3 years.

However why was she put back under this line manager - bad management all round.

If the manager cannot carry out every duty of his job i.e. supporting, mentoring, training and managing employees then by his definition he should go.

Also remember as a large organisation an ET will probably concur that there is no excuse for this.

Why can the manager not cover this job over holiday periods? Maybe then he will organise holidays correctly and make sure he has enough other staff available.

E Palmer
Member - 14 posts

Thanks for the advice. I do not believe that she will persue her appeal against the grievance or take legal action against us as she is timid not an agressive person. She does not have any concrete evidence only her word againt the managers, as to what was actually said to her at the time of the incidents. We were advised that as the race allegations were over seven years and the previous return to work was over three years that she can not take action against us for these incidents through an ET or the courts.

Anne McAllister
Member - 124 posts

Watch out for the timid ones LOL
I dont think disability discrimination is time barred but 7yrs does seem a long time.
Id get legal advice as Sheena says.

Craig Stuart
Member - 86 posts

Fantastic place to work from the sounds of it E Palmer! Useless line management examples, a 'never mind, we got away with it attitude' and probably a new poilcy of employing only 'timid' workers! Shame on you!

E Palmer
Member - 14 posts

I agree Craig ,the management bullies it workers and no one ever raises a grievance or complains for fear of reprisal. This thread is about me, I am not the boss but the victim. I would like to go to an ET but my union solicitors only work on a no win no fee basis for the union and any difficult cases are rejected. I was advised by the solicitor that as some of the incidents happened before 2004 I can not claim as it is over 3 years and there is a 3 year cut off point. I am not sure if I am able to appeal againt the grievance that I raised as I have left it a little late as it is just about 10 days since I received the letter rejecting my grievance.So if there are any lawyers willing to take my case please contact me.

James Fairchild
Member - 257 posts

Three years..... three years is the time limit for personal injury.... not contract claims nor employment disputes (which are six years and normally three months).

The other point is that in the case of a chain of bullying (which I believe this is) its not the time the seperate incidents happened, but the time that the _chain_ finished (if that makes sense).

E Palmer, you have shown capability by researching online and posting here - I suggest you fill in the tribunal forms yourself, and go ahead. Try www.armchairadvice.co.uk/forum for more views.

sheena farenden
Member - 60 posts

Have your union solicitors actually rejected this case or have you not actually contacted them. Contact them again as from what you have said it is a clear case of Disability Discrimination. I always thought that union solicitors could refuse a case if likely to lose but did not charge as covered by your union membership.

Please contact your unions Disability Champion urgently. You can also contact Disability Rights Commission etc for help.

I am both a manager and a union rep and I am well aware of the pressures put on disabled staff (and their managers) by senior managers. I am also well aware of some marvellous managers who fight for their staff and get the best out of them.

I know which I prefer the good ones as I have a lot less contact with them and when we do meet it is usually on good terms.

I just wish we managers could all learn by others mistakes instead of repeating the same mistakes over and over.

E Palmer
Member - 14 posts

Thanks for the replies, I am not sure if I am classified as disabled. I know that depression is after sufering from it for 12 months. I was off for 4 months in 2004 and I have now been off since September 2007. The part of my job that causes problems is having to work in certain areas as I am mobile.The senior manager at the grievance hearing stated that he would mitigate my working in that area.

However he has obviously talked to my line manager as he now says that because of the needs of the business, I will have to cover the area during holidays, sickness etc. which could be whenever they feel like sending me there. The line manager has made racial remarks in the past on more than one accasion so have others but aparently these were just jokes.

I raised a grievance against my line manager for bullying as when he forced me to work the areas that made me ill, I advised him of my limitations and he just said that if I produced a doctors letter, the company would dismiss me as they would say I am unfit for the job. He just repeated the same statement about 10 times. My grievance for bullying, harassment and discrimination was not upheld as the company said he was just informing me of the situation.

My local Amicus Union rep did not seem very interested. I therefore contacted the unions solicitor via an accident industrial disease claims procedure in Jan2007, which is no win no fee but she said that as the onset of my illnes was just over 3 years I could not claim. I approached her again in October 2007 and once again she said that there was no negligence although I advised the manager by emails in 2003 and 2004 and in 2007 that aspects of the job were making me ill. I did not mention the racial incidents as I thought that they were over 7 years they were too long ago to claim. However I mentioned them in my grievence as I belive that it was a reason for the bullying.

The notes of the grievance hearing are not accurate as so much has been omitted and some statements have been added that the company manager did not make. However he did make one comment which was noted . he said " all companies have a duty of care to their employees and we have failed you".

I do not know where to turn next, am off sick but still employed and not sure
if I am able to go to a tribunal. I believe I have about 24 hours to appeal against the decision of the grievance. Although my union rep said it would be a waste of time.
I have written to company and stated that I am concerned about the change of stance on the areas I have to work and I am awaiting their reply I can't afford to leave the company as I would loose too much pension. I only have 5 years until I retire. I am sure that when I return to work they will find some way of dismissing me in the near future for raising the grievanve.

Thanks for all the advice.

Carole Simmons
Member - 52 posts

Please ring the Disability Discrinination advice line No 0845 762 2633 now! They will give you solid and up to date advice and the actual case law under which you can claim if any.They will tell you what letters to write and to whom and who to contact and if necessary will take your case if they think you have one and if you have no other union that will take it for you.

As Sheena and craig have already said, sounds like a great place to work and they will get their comeuppance, lets hope its with your case.

Craig Stuart
Member - 86 posts

I would just like to add my support to that of everyone here. Best wishes and all the very best.

sheena farenden
Member - 60 posts

If after talking to the disability advice line you still feel the Rep has not helped etc then you should contact Headquarters and ask for another rep I forgot to ask is this Rep being bullied into not helping or are they part of the problem.

John Robertson
Member - 16 posts

Two unions - Unite-T&G and Unison - have let slip in publicity that all their legal work is usually no-win no-fee. I imagine that Amicus is no different. So if you think another lawyer might give better advice, try Solicitors-Online.com for a database of employment or discrimination lawyers by postcode and find out if any of the nearby ones do no-win no-fee.

There are two web sites for narrowing-down the facts of legal claims before seeing a solicitor, called Iambeingfired.com and Andrea Adams Trust; both can be useful to use before seeing a no-win no-fee solicitor. If the Disibility Discrimination Advice Line isn't much help, you could call ACAS 08457 47 47 47 Monday to Friday, 8-1800. The suggestion above for Armchair Advice looks useful as well.

The main thing is to look for legal advice separately to any help you can get from the union or complaint you want to make to them. Good luck.

Linda Westrupp
Member - 4 posts

I think your union and solicitors seem to be treating this under personal injury. However, if your doctor diagnosed you as having depression and put that on a certificate, that is a clinical condition and DOES come within the remit of Disability Discrimination. Please, please talk to the Disability Discrimination Advice Line. I know it is very hard to do things if you are normally timid or shy, but you have come this far and can see how many people are supportive - so go for it and Good Luck!!

Anne McAllister
Member - 124 posts

Can i just ammend a previous post.
The disabilty discrimination help line number is now......0845 6046610 and is operated by the Human Rights and Equality .

E Palmer
Member - 14 posts

Thank you everyone for your support. I have contacted the Disability Discrimination Advice Line. The advisor asked me several questions and said that I do qualify under the criteria for depressionas as disability My doctor has written work related stress on my certificates but I have advised her at each visit that I am suffering from depression. She did write to the company previously and state that I had been suffering from depression for several years.

At the last hour I plucked up courage and have made an appeal againt the decision of the grievance. I believe that the union reps do not wish to rock the boat with regard to complaints. There seems to be " we will look after you if you dont cause us too much trouble, type of unofficial agreement". Between the union reps and the company.

I have contacted a union solicitor on two occasions but they do not seem very keen to take stress cases as they work on a no win no fee basis. The solicitor was a personal accident solicitor and when I asked her some questions about certain aspects, she kept saying that she was not an employment expert. She also said I had left my claim too late, ie over the 3 year deadline to claim for the problems prior to my last sick leave.

The advisor at the Dissability Discrimination Advice line said that if the company fail to consider my limitations following my appeal, I should then take my case to a tribunal. Thanks for all the support, I don't believe that I would have taken any action, had it not been for the advice and support of the member of this forum.

E Palmer
Member - 14 posts

Sorry I forgot to mention in my previous post. The person who I have to appeal to is a renowned throughout the companyfor his bullying and agressive attitude.
I am not looking forward to it.

Craig Stuart
Member - 86 posts

Under the ACAS Code of Practice on Disciplinaries and Grievances, you have the right 'to be acompanied' in such hearings - this includes appeals. If your union reps are unwilling to support you in this, can I suggest that you contact the union HQ. Most appeals are handled by FTO's (full-time officers) and as a union member you have the right to be represented, not merely 'accompanied'. This same rule applies to Tribunals and you sound like you have a good case following your advice from the Disability Discrimination Advice line. You may need to push the point, but best to speak to someone who has your interests at heart rather than the company's.

b hannon
Member - 4 posts

This company should be named and shamed. I both employ people needing extra support and carry out management training covering DDA- specifically around stress & mental health etc, frankly I positively endorse Sheena Farendens comments - managers that support people with disabilities are the ones less likley to be in grievance hearings and most likely to be managing an effecient happy team. The line manager and the seniour manager who heard the grevience need training before they as do any more damage to either the employees or the business! Good Luck E Palmer, keep on keeping on.

James Fairchild
Member - 257 posts

One point you made about was about the effect that a possible dismissal may have on your pension.

In general, this cannot happen, and your pension entitlement must be protected.

Good luck with everything - in my view you need an EMPLOYMENT solicitor not a PERSONAL INJURY one, as others have said. Get yourappeal in on time (maybe use Royal Mail special delivery to send it) and carry on researching online. Another site you might find useful is http://www.consumeractiongroup.co.uk then click forum and employee (i think).

Carole Simmons
Member - 52 posts

Well Done E Palmer, now no matter how daunting and intimidating they seem just keep going!!! Remember....they are just people no more no less and you have proved yourself to be much better than them. There ARE people that will help you if you have the courage to ask and you have shown that you have that courage no matter how difficult.
Nothing is easy in this life you have to just take each day as it comes with small steps. Just try not to think too far ahead and deal with each day as it comes so that things dont overwhelm you. Keep it up!

Anne McAllister
Member - 124 posts

Good Luck E. Palmer !

mariam show
Member - 1 post

good

E Palmer
Member - 14 posts

I would like to thank everyone on this forum for their support and encouragement. I did appeal against the decision of the senior manager but the appeal was no upheld by the Company Director. The company doctor has made suggestions regarding my work patterns but the letter following the hearing said they will only consider the recommendations when I return to work. My search for a no win no fee solicitor was not successful, as soon as you mention work related stress/depression they will not accept the case.

However I have found an employment solicitor and paid the fixed fee for advice. She advised me that I have a case against my employer but as some of the incidents are over the time limits, my best course of action is to resign and claim constructive dismissal. Unfortunately the cost of taking my case to a tribunal will be about £10,000.

I do not feel able to return to my job, although they assure me I will not be victimised, I am sure they will make life difficult for me when I return as I have to work under the same manager. Although I would like to take them to a tribunal I do not have the funds and if I resign I will also have no income. My last resort is to return to my Union Solicitor and attempt to persuade them to take review my case.

James Fairchild
Member - 257 posts

Although it is daunting, you can go to tribunal on your own. The chairman/wing members are often especially helpful to a person appearing unrepresented.

Carole Simmons
Member - 52 posts

What union are you with? depending which one I may be able to suggest a law firm.

E Palmer
Member - 14 posts

I have contacted the area officer of the union to ask if I may speak to the union solicitor but he said I would have to go through my shop steward I have contacted him but he does not answere his phone. The union Formerly Amicus and now Unite do not seem to want to take up my case. I would be grateful Carole,if you could suggest a law firm.

Craig Stuart
Member - 86 posts

I suggest Thompsons. They only deal with union member claims and all their staff are union members.

Carole Simmons
Member - 52 posts

Try OH Parsons on 0800 526368 http://www.ohparsons.co.uk This is a legal firm for unite members and they are very good. They do not deal with employers.

Explain to them the trouble you are having with the union shop steward and what the area office has told you. Parsons should give you some free advice at least which will let you know which way to turn.

Good Luck!

E Palmer
Member - 14 posts

Thanks Craig and Carole for the information but I will have to give up and return to work as my sick pay is about to expire and do not have the funds to take legal action. I contacted OH Parsons by email and explained my situation but I have not received a reply.

I also contacted Thompsons but they referred me back to the union. I made two attempts to contact the union solicitor one by completing a personal accident injury claim form, no reply. The second by making several phone calls to the union hq who in turn referred me to a union officer who then advised me to phone the shop steward and so it went on until I phoned about six people and finally back to the original officer. He said he would speak to the solicitor at Thompsons but I have not been contacted.

The union do not seem to want to take my case any further, they just put obstacles in the way until you give up. Therefore I will have to go back and work under the same bullying manager and see how long I can last out before I have to leave my job.

Carole Simmons
Member - 52 posts

I think you should call the DRC advice line back again. I assume you got a case number - I may be wrong on this but I am under the impression that if you have no one else to represent you and you have a good case then they will. whatever, their advice is still worth the call.

John Robertson
Member - 16 posts

I agree with James Fairchild's posts.

There is a site called http://www.employees.org.uk (front page only) that lists the numbers like ACAS for getting a DIY case together. Also, if there's any obscure package of telephone counselling and a legal helpline bundled with your employment conditions, it would be worth finding-out about while you still have a contract. DAS are good.

From personal experience, I know that I've stuck myself in bad careers for far too long, and that a break doing something that pays like building work would have helped me reconsider.

A lesson for employers reading this.

Amicus isn't going to help you root-out middle management bullies unless forced to be transparent, have a contract with their members, use members' subscriptions to pay allocated staff etc. Otherwise they'll let problems build-up for years until they can get a referral free for sending a member to a no-win no-fee lawyer, or maybe get some free publicity from some sort of industrial action.

E Palmer
Member - 14 posts

Final update I finally made contact with the Union Solicitor and was advised that I have no case against my employer . The solicitor also advised that should the company force me to carry out the same duties that originally made me ill. They still in her opinion would not have failed in their duty of care.

Makes me wonder why I paid to be a member of the union all these years. When I said that I had contacted an independent solicitor and that the solicitor had advised me to resign and claim constructive dismissal. The solicitor then advised me that she was unable to comment and that I should discuss that matter with my union.

Amicus/ Unite's policy of offering legal representation via a no win no fee solicitors is a recipe for employers to bully employees and get away with it.
The solicitors obviously do not wish to accept difficult or complex cases. The union claims in its recruiting literature free legal aid etc. but when the crunch comes you are on your own and if you wish to take legal action you have to pay for it yourself.

The senior office from the Union has failed to contacted me, probably hoping I would get fed up and drop the case. I managed to speak to the solicitor by the back door as I completed an accident /industrial illness claim form.

The bully's have won yet again and the union have let them.

sheena farenden
Member - 60 posts

I'm sorry but I cannot understand this case as stated right at the beginning this is a definate discrimination case both under DDA and posssibly racially. Where is this union at present. Try contacting the President of the union or whatever they are called in unite and see if you can get anywhere.

If all you are saying is correct why are the members paying their subs.

Did you go to ACAS and any of the other organisations mentioned.

Demand another Occupational Health visit and discuss this with them.

I will see if I can get anuy info from other reps for you

Jem Sarna
Member - 7 posts

Sorry for not reading all the posts here, but has a Stress Risk Assessment been carried out by the employer?

very supprised by the union response too.

Jem

Robert Moloney
Member - 2 posts

I am shocked by what I have read here and wish you all the best in whatever action you decide upon. I would say from personal experience when my wife went through something similiar she used the companies policies and procedures against them as they had ignored them at every turn. It looks like your company are doing the same get copies read and study them if you intend to move forward with any action on your own.