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Tony Williams
Member - 6 posts
Jennifer
You should be careful about this. Sickness absence is any absence due to sickness, and includes disability related sickness absence. If it is disability related, the employer is expected to make 'reasonable adjustments' when considering taking disciplinary action. If the level of absence is still unreasonable after taking the disability into account then disciplinary action including termination of contract can be justified even though it is discriminatory.
It also depend how your employer recorded your absence and on what sick pay arrangements are in place. If you took the time off as 'sickness' then it would be reasonable for an employer to consider this against your total time off for sickness. If you took it as holiday or unpaid leave this would be different. While there is an expectation under the DDA that an employer will allow time off to attend hospital appointments there is no legal requirement that this should be paid time off and it can be argued that individuals should where possible arrange such appointments outside work time.
Some organisations do have 'trigger points' which could be considered to be 'allocated sick leave', but many do not. Some organisations also come to an agreement with individuals who have disabilities to 'allocate' additional sick leave, but again most do not.
If you fail to declare your full sickness absence record, and this is subsequently considered to be relevant to the decision to employ you (if the level is considered 'unreasonable' when disability is taken into account) the employer could take disciplinary action against you.
This may sound very unfair, however if your employer asks these questions before offering you the post, and you claim discrimination, they will have to prove that they did not discriminate. This will be difficult for them unless they have clear objective evidence that another candidate was better than you. The law is clearly on your side, but in practice very few DDA cases concern pre-employment discrimination.
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Tony Williams
Member - 6 posts
Phil
You are right to recommend that first-aiders in particular should be informed if employees have conditions that could cause sudden illness or incapacity, and right to state that this should only be done with the employee's consent.
It is important to understand that it is not the condition that is the disability, but the effect a condition has on the individual (apart from conditions named in the DDA: MS, HIV and cancer). Some individuals have Type 2 diabetes that is diet controlled and may not have a substantial adverse effect on his ability to carry out normal day-to-day activities. It is much rarer for individuals with Type 2 diabetes to suffer from sudden collapses even if they take insulin because the underlying problem is very different.
It is also important to appreciate that sometimes employers try so hard to care they can appear intrusive, so employees may perceive them to be discriminatory. The DDA does not override Health and Safety Law, so any question that can be justified under the Health and Safety At Work Act and associated legislation can be justified under the DDA. The employer also has a duty to make adjustments, and can only be expected to do so if he knows that an employee has a disability. A balance therefore has to be struck between asking questions that are appropriate and justified, and asking questions that are not.
There are many jobs where the need for specific questions is minimal; the only question you may need to ask is 'do you think you have a disability that affects you at work?'. In cases where there may be a reason to ask sensitive questions it is often best practice to use an occupational health service to ask the questions so management are only told what they need to know.
Tony
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Tony Williams
Member - 6 posts
Richard
You need advice from occupational health not occupational therapy; they are completely different specialities. It sounds as if you need good advice as soon as possible, before the situation gets entrenched and difficult to manage.
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Tony Williams
Member - 6 posts
The simplest way to avoid discrimination like this at the interview is to conduct the process in two stages. Interview candidates and select the best one, then after this process is complete ask about any disabilities that are likely to be relevant. Asking about medical problems may well appear intrusive and may well be unnecessary. All you need to ask is 'do you believe you have a disability or medical problem that might affect your ability to work or your health at work?' with just a 'yes/no' tick box.
You can then ask if they are happy to discuss the issues with you, explaining that you only need to know so you can help them, make appropriate adjustments, and ensure they are looked after appropriately if they become unwell at work. If it is necessary to ask about matters that would generally be considered confidential, it may be better to use an occupational health service; this will also ensure that medical information is held securely away from all other personnel data.
Some of the postings have questioned the issue of 'positive discrimination'. The DDA does require an element of positive discrimination unlike all other anti-discrimination legislation. It will be interesting to see how this particular issue is handled in the proposed Single Equality Bill.
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Tony Williams
Member - 6 posts
Veronica
People with insulin dependent diabetes can have significant difficulties with shiftwork, and there are certain tasks where diabetes that is not adequately controlled can put them or others at serious risk, such as driving vehicles including fork lift trucks, operating cranes, working at heights, travel abroad etc.. He may need an appropriate place where he can inject insulin in private and it is important that others know his condition and what to do in case he has a 'hypo' at work.
It is clearly important to be supportive, explain that you want to ensure that now that you know his condition you can fulfil your duty of care, and can make reasonable adjustments if these are needed. If you have any concerns, a referral to occupational health would be advisable, and this would enable him to maintain confidentiality if he does not wish to discuss issues with you.
With good support many employees with diabetes can participate fully in employment; he may well be able to do more with support than he realises.
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Tony Williams
Member - 6 posts
There are two key issues here. First, the process of IVF is inevitably emotionally traumatic, and a supportive employer will help reduce stress and promote a positive atmosphere at work for all. Second, apart from time attending hospital for the technical process of IVF, the pregnancy should be no different to any other, so there is no medical indication for any further absence from work or adjustment at work other than for the usual pregnancy issues.
If you have any questions, particularly if you feel the employee is 'swinging the lead', I strongly recommend an occupational health opinion or an obstetric specialist opinion. It may be better to negotiate time off 'up front' either as special leave or additional holiday rather than medicalise issues.
A GP is likely to be the patient advocate and may just give whatever sick notes are asked for. I have seen a GP recommend five months sickness absence for IVF with no medical justification five separate times for one individual, and seen management grant it because of fear of litigation, all at full pay at public expense.
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