Author Topic: What counts as a disability in employment law?  (Read 1981 times)

gorbut

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What counts as a disability in employment law?
« on: 20 May 2014 09:00AM »
We are helping a young family friend who has been suffering from throat problems since before Christmas. She has been diagnosed with muscle tension dysphonia which causes her excessive pain. Her voice still sounds fairly normal but the pain gets so bad she finds eating very painful so she doesn't eat. It is having a bad effect on her mood too as she is worried she will never get better. She is now taking anti depressants.

She works as an office manager for a firm in the west end of London. She initially had sick leave but has gone back to work on the understanding that she would not do the part of her job that means she has to be at the reception desk where she would answer the phones and where everybody in the large office comes often to ask questions or just expect her to pass the time of day. Unfortunately the senior management are not being understanding and have pressured her for an exact date she will be able to go back on reception. They are fed up with paying a temp to do the job  so she returned from her morning session with her speech therapist yesterday to find she had to be on reception all afternoon.

I don't think the company are managing this very well but as I act as a sort of stand in mother to her due to her own mother's mental health problems, I might be not seeing the situation in a logical way.
I think that she would not have strained her voice in the first place if the management had not poorly managed the return from maternity leave of the other admin staff. They started off with two full time, including K herself, 5 days a week and now have only K on the first three days of a week and two part time maternity returners on Thursday and Friday as well as K. The work is not less on the first days of the week and is often not suitable to be stored up for when there are three. This firm are also breaking health and safety rules on the number of toilets they have for the number of staff so I don't hold much hope of being able to sort this out but K needs the job as she has no other means of financial support so is at their mercy. In reality we will make sure she is never homeless but she has worked so hard to get herself out of the bad place she was in as a child due to her mother not being able to look after her properly that this all feels like a kick in the teeth for her and I am worried she might do something silly. In case any of this comes across as being critical of K's mum it isn't meant to be. She obviously loves K but her own vulnerability has made life very hard for her.

Yesterday the speech therapist told K that she should be covered under equality act legislation as this can be counted as a disability and suggested she go to CAB for advice. she is going to do that but as I know we are lucky enough to have some with expert knowledge here I told her I would post here too. My son, who has developed impressive skills in self advocacy over the last few years is willing to accompany her to any official meetings with her HR dept ( and will enjoy giving them he'll about any access problems if there are any >biggrin<) but he can't do any research until after 5th June as he needs every bit of available energy to get through his uni exams. So if anyone can help with advice we will all be truly grateful.

Dic Penderyn

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Re: What counts as a disability in employment law?
« Reply #1 on: 20 May 2014 09:35AM »
You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

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devine63

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Re: What counts as a disability in employment law?
« Reply #2 on: 21 May 2014 01:53AM »
Hi Gorbut

Dic is quite correct - and there is a further bit: "long term" is defined as ... has already  lasted or is expected to last for at least one year ...   so for definite confirmation your friend will need to know from her doctors what her prognosis is?   Do they think this will get better?  How long is that likely to take?

I found this which is from a suitable, reliable source:
http://www.cuh.org.uk/sites/default/files/publications/PIN2335_muscle_tension_dysphonia.pdf   
it gives no idea what the prognosis is ...   but it might be useful to show it to HR / senior management to help them to understand the condition.

 I have asked a colleague who may know more than me, but in the meantime some advice for your friend:

 - if not already a member of a trade union, join one asap - they are often very helpful in this kind of case, but (technically) may not be able to help until she has been a member for a few weeks.  The union should be especially interested in the under-staffing of the reception desk and the lack of adequate toilets as those affect other staff too.

- she should ask Human Resources department at work to refer her for an Occupational Health assessment - the OH doc will give an independent opinion, confirm what the employer can expect and should be able to make formal recommendations to the employer about what reasonable adjustments can be made to assist [and good employers make reasonable adjustments even for people whose situations are not sufficiently long term to qualify as a disability under the Equality ACt (2010)].

Until the OH appointment your friend's own GP should be able to write her a "fit note" which says she is well enough to work, but should not be required to be on the reception desk or answer the phone - I assume that there are other aspects to the work she does, such as answering email queries and managing other staff and so on.

I would expect one of the OH doc's recommendations to be that, as  a reasonable adjustment,  your friend should not be asked  to do the "on reception" part of the job or answering the phone until this illness has cleared up - but this can be managed by swapping activities with a colleague, so they both retain a fair workload.

Your friend might also want to think about getting some business cards printed which explain that she has a voice problem, so when necessary she can hand it to colleagues and clients.

If by some chance being on reception and answering the phone is practically all of the job and the prognosis suggests this is a long term problem, then it is time to talk to HR & management about how her job role could be developed altered so she does more of the things she can do and other people d the stuff she cannot do.  In its most strong form this might involve a formal redeployment (essentially changing to a different, more suitable job within the same organisation).

I hope that's helpful,
regards, Deb

gorbut

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Re: What counts as a disability in employment law?
« Reply #3 on: 21 May 2014 10:32AM »
Thanks for the advice. Unfortunately due to the constant pressure from her manager she will now be off with depression as their emails to her about the problem which give the impression they think she is being a nuisance, have tipped her over the edge. I have told her health comes first and that once she is getter or finds a way to cope if it is not going away we will find a way back to 'normal' life.

I am going to help her write to work asking for the occupational health appointment and see what happens from that but she will have to be signed off as otherwise I think she might attempt to end it all . Her Dr had already written a fit note stating that she cannot talk for prolonged periods for at least 6 months but they don't seem to be taking much notice of that. They seem cross at having to pay the temp and others in the office don't seem to be able to cope with not involving her in unnecessary chatter. She needs to be more assertive about it probably but depression has eaten up her confidence.

Reading the description you linked to Deb makes me wonder if she has a correct diagnosis as her voice doesn't sound much different and she describes unbearable pain. I suspect that stress might be a large part of it but the pain is obviously real. I wonder if she would get the same reaction from management if she was not a 25 year old woman. There is a definite tone of don't make such a fuss in the emails I have seen. A common problem with invisible illness of course as we have found over the years.

I suggested months ago that she should join a union but she seemed to think this would not be a good move in a private company. As this is the only job she has had, starting there as the office junior, she is terrified of getting a bad reference or even no reference. She feels she will be doomed to the sort of life she had as a child when there seemed no hope of getting out of a spiral of poverty and debt.

I will study all the relevant legislation etc and see what we can do. Bit hard to fit in though as to add to my caring duties my Mum gas broken her hip.

auntieCtheM

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Re: What counts as a disability in employment law?
« Reply #4 on: 21 May 2014 05:56PM »
I'm so sorry that things have escalated this way.  Is your Mum in hospital?

devine63

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Re: What counts as a disability in employment law?
« Reply #5 on: 21 May 2014 09:30PM »
Oh dear - yes definitely go ahead and get an OH appointment - they can take account of the depression as well as the vocal issue.

Get her to keep copies of every single email which comes through - if this gets nastier, they might be needed later.   Also get her to find out who handles harassment / dignity at work cases at her firm - she should contact them to ask for advice on how to handle the situation - she does not have to actually make a complaint, just get their advice and thereby make sure the company knows how badly this line manager is behaving.  The employer does not have to know if she chooses to join a union - they aren't entitled to know who is and is not a member.

One of the reasons for involving the union is that they are good at judging when it is best to "negotiate someone out" with a positive reference and awhen it is best to fight!
regards, Deb