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Is this indirect disability discrimination?

(10 Posts)
stumblymonkey Thu 07-Apr-16 18:29:55

Posting here for traffic as the redundancy sub-topic gets very little.

I'm just wondering if any HR or lawyer types can advise me on whether it's worth speaking to an employment lawyer...I don't want to spend money having a consultation unless it's likely to help...

I would be so very grateful for any responses!

Here goes. I work in the City in Financial Services, I've always been a top performer and got top performance ratings...I worked very hard and quite often very long hours to maintain this performance.

I also have bipolar disorder.

Two years ago things got worse with my bipolar and I ended up taking 12 weeks off work, 4 of which were spent in a psychiatric hospital. I came back all guns blazing an working the same hours as before. My Line Manager (Line Manager 1) did not refer me to Occupational Health as is the correct process (I didn't know the process so didn't challenge it). I had another dip in mood a couple of months later and took off two weeks.

I had a verbal warning (followed up by email) on return about my sickness absence levels.

I now know this shouldn't have happened as had I have been referred to Occ Health they would have confirmed my condition was a disability and as such I can't be disciplined for it. I got a phased return to work but no other support or adjustments because Occ Health weren't aware of me.

Thus I continued as before and that, combined with some workplace bullying from one peer, led to me being off again almost a year later for 8 weeks, with another 3 week stay in hospital.

This time I had a different Line Manager (Line Manager 2) who did everything well. I got referred to Occ Health and have not had much time off over the following 18 months. One of the adjustments was that I would only work a normal 40 hour week as my psychiatrist said this was an absolute 'must' in terms of managing my condition.

During this time I changed Line Manager again(!). I raised with this Line Manager 3 that until I was taken ill I'd always received top performance scores and that afterwards I only get 'satisfactory' as without working silly hours it is not possible to over-achieve on the targets. Line Manager 3 basically said this was correct and I needed to make a personal decision between high performance/long hours/being ill and satisfactory performance/40 hours/being well.

I said this was fine but I was concerned that in any future redundancy situation this would work against me as our selection criteria use performance ratings as a large part of the selection process. Line Manager 3 had no answer to this (which was noted down in the minutes).

A few months later I received my bonus for my 'satisfactory/on target' performance and was upset to find that instead of an 'on target' amount I had 15% less. I had no negative feedback during the year and at no time during my performance review was it suggested I had not met any targets.

When I took this up with my new (fourth!) Line Manager 4 she said she'd been told by Line Manager 3 that it was because I couldn't do as much work since I'd been ill. I was pretty peeved and spoke to Line Manager 3 who said this was not the case, he didn't know why Line Manager 4 had said this but would give me no reason why my bonus was less other than 'he had to give high performers more and it had to come from somewhere'. I believed it should come from low performers not those on target but he did not agree.

Sorry...this is very long!

Anyway...I have now been put under consultation of redundancy. Four roles will be reduced to one role. I have not been selected as my performance reviews are only 'satisfactory' even though I get amazing feedback from other departments because I can't over-achieve without working long hours.

It feels like indirect discrimination to me...what do you think?

I don't really want to go to tribunal but would I be able to negotiate additional damages as part of my redundancy for this? Can I do that on my own or should I engage an (expensive) employment lawyer to show I mean business?

stumblymonkey Thu 07-Apr-16 18:31:17

Just to clarify I have had three professionals confirm to me that I'm disabled for the purposes of the Equality Act (my own psychiatrist, Occ Health and a Doctor who did an assessment of me for my employer)

Koala2 Thu 07-Apr-16 21:34:48

I would say that as you work in an industry where money is commonplace, you need to engage a lawyer to show you mean business.

OllyBJolly Thu 07-Apr-16 22:02:42

I'm guessing that you're a high earner so it might be financially sensible to engage a lawyer to ensure you get the best deal possible.

You say this I now know this shouldn't have happened as had I have been referred to Occ Health they would have confirmed my condition was a disability and as such I can't be disciplined for it. But it's not actually a clear cut case. The company can discipline for absence if they have fulfilled other criteria i.e. made reasonable adjustments, have good business reasons etc.

However, if you have been selected for redundancy based on disability related absence, then that is probably automatically unfair. (If the performance review is based on attendance, and this attendance is compromised because of disability absence, then that is probably also unfair). I say probably because I don't have all the facts.

There are a lot of "holes" in the company's actions here and it might be well worth paying for professional, expert advice to navigate them. What I would advise is seeking out a lawyer with particular expertise in employment litigation. Expensive, but more likely to get you a significantly better deal.

stumblymonkey Thu 07-Apr-16 22:20:55

Thanks both. It sort of confirms my thoughts....I don't believe it's cut and dry enough for a tribunal case but looks bad enough that they may be tempted to add extra to my redundancy package to keep it quiet...I'll take a look at some employment lawyers...

lougle Thu 07-Apr-16 22:28:48

It wouldn't be indirect, I think. It's direct DD because you only have restrictions on your work hours because of your disability. If you are getting satisfactory performance on 40 hours and others are doing over 40 hours but getting less satisfactory performance reviews, then you are still getting 'good' reviews.

If it's impossible for you to 'exceed' because of your disability then they need to come up with a criteria that doesn't disadvantage you, I think.

Having said that I have no qualifications in this area so could be wrong and you really need professional advice.

Akire Thu 07-Apr-16 22:35:50

Is there a way to work out I bring in X on 40h which is the same/more as someone doing 60h? Though I guess if a lot of deals are taking place in evenings and you also have to be in office in morning you can never keep up.

stumblymonkey Fri 08-Apr-16 05:19:16

Sadly not as I'm not in an income earning role.

I'm in a senior-ish project management role so it's harder to make a direct comparison about what I manage in 40 hours vs. what others manage in 60 hours sad

YoungGirlGrowingOld Fri 08-Apr-16 05:40:25

Hi Stumbly

Sorry to hear this. Having worked in the City my advice would be to leverage this to extract a better redundancy package, and go in hard. They sound like dinosaurs btw. My experience was a few years ago now, but it used to be the case that anyone who "took on" their employer over redundancy or unfair dismissal never worked in the square mile again. Hopefully things have moved on since then, but I would also bear that in mind if you want to secure a similar role.

My DSis has the same condition and went from a high-octane legal role to running her own PT business. She is MUCH happier and finds it easier to manage her condition outside a pressure cooker environment.

Good luck! flowers

VertigoNun Fri 08-Apr-16 05:52:22

Nothing new to add other than I believe manager 3.

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