Is this disability discrimination?

[goldshoes]

I have been offered a new job but the employer is questioning sickness absence from my previous role saying it's high and intimating it's above their 'tolerance' level.

The sickness absence at my current role was due to this disability.

My current employer has been supportive and the sickness absence was never as issue with them. I applied for a new role at different employer as I need more hours /
I stated on my application form (for new role) that have a disability.

Can my past absence prejudice future employment- is it even legal? It seems really unfair, no one can help being ill or having a disability 

I'm struggling financially at the moment and feel really down & hopeless as if I'm not good enough to work & never will be.

I'm planning to ask a CAB for help next week but if anyone has any advice in the meantime I'd be very grateful.

It depends on a number of things - what the disability is, how much you've actually been off etc. Generally employers are expected to give a higher tolerance towards sickness levels associated with disabilities but that isn't the same as carte blanche so it might not necessarily be discrimination.

Tripping- I had 6 weeks off with depression. I have had depression for a long time (about 25 years).

My current employer was very supportive.

How on earth are people who have been unwell able to change jobs if any sickness absence rules them out..

It's pretty standard that employers will look at sickness rates.

Yes but if time off is due to a long standing condition which is classed as a disability it seems unfair to discard someone on the basis of that.

I want to work, have very good references and am capable of working.

Yes it is Kiss- I've had advice from Mind.

Anything physical or mental impairment which has a substantial/ long term effect on your day to day life is classed as a disability:

www.mind.org.uk/information-support/legal-rights/disability-discrimination/disability/#.WxEofhbTXYU

As a previous poster stated, employers will need to make reasonable adjustments for staff with disabilities in line with the Equality Act 2010. One such adjustment may be to accept a higher level of absence. This doesn't mean that they have to accept an unlimited level of absence from you.

In your last post, you wrote 'you are capable of working'. Your employers response will be that if you can't maintain a satisfactory level of attendance, then you aren't capable of working and capability is a potentially fair reason for dismissal.

You said in your post than you are feeling down at the moment and that your current employer has been supportive. If you are feeling unwell due to your depression, I would think carefully about leaving your current, supportive employer as you may be putting yourself in a vulnerable position. You may well be on probation on your new role and if you cant maintain a satisfactory level of attendance, your job could be at risk.

In terms of your six week absence, your new employer should consider the context of this period of absence. For example, if your absence was a one off period and you can demonstrate an otherwise satisfactory level of attendance, the employer may be satisfied with this. If you have had lots of other periods of absence, they will be concerned.

I don't think depression is automatically covered by the Equality Act. You'd have to prove that it should be in your particular circumstances.

It also depends on how reasonable it is for the employer to make the adjustment and the impact on their business. A large firm with 30 staff doing the same job as you, for instance a cashier in Tesco, would be able to swallow the disruption of your absence whereas a small business, like the corner shop would be in diffs if they had a member of staff go sick. Would the business you've applied to be put under much strain OP, if you went sick there for 6 weeks?

You need to get specific legal advice. Discrimination is still covered by legal aid (though only remotely by telephone) so if you are on low income phone 03453454345 for the Legal Aid Gateway

How many other people are there who applied for the job? If you've actually had a job offer, it'll be difficult for the employer to turn round now and justify changing their mind.

Tripping- the organisation applied for is a very large organisation with 1000s of employees. I can't imagine that they don't employ anyone else who (a) has depression and (b) has had more than 6 weeks absence.

I'm satisfied that my depression counts as a disability as it is a long standing condition, and without treatment would have a substantial & adverse affect on my day to day life. My GP supports this.

Oh I'm certainly not suggesting it isn't covered by the Equality Act; just tempering caution that a high level of absence might not be automatically accepted as a RA if you're a critical member of the team.

For clarity, I'm an employment worker that specialises in agreeing reasonable adjustments for those with disabilities.

OP, you might question why your current employer is providing information about you other than dates worked and reason for leaving, and job title. They have no right to provide information on how many sick days you have taken. It leaves you vulnerable to discrimination.

They have every right to provide factual information such as absence level. A number choose to only provide the bare basics but that is entirely at their discretion. As long as they can prove what they said is true, there is no issue.

@TrippingTheVelvet is right ... its all down to whether it's reasonable** or not.

At the end of the day its a balancing act - businesses need to adhere to the Equal Opps laws but businesses can refuse reasonable adjustments if they would impact too much upon service delivery.

I have a disability and totally get this . Having a disability doesnt mean having rights to adjustments , and to have whatever sickness record your disability dictates.

Its not fair on the team or the business.

When you say they are “questioning it” what do you mean exactly? They haven’t withdrawn their offer, presumably? Are they seeking occupational health or other medical opinion on your fitness for work/adjustments needed? Have they responded when you advised them the absence was disability-related? How have you left it with them?

Some pretty poor attitudes exist towards mental health - doesn't make them right.

The case law on this says that it is likely that allowing a higher level of disability-related absence would be a reasonable adjustment, but courts have still left the door open for dismissal/ sanctions for people even if absence is genuine and related to disability if it affects the business or is the only way to achieve a legitimate aim of productivity or whatever.

I can't think of any similar case law to your case but it sounds like they are just nervous about the potential absence levels rather than withdrawing the job offer. It would be sensible for them to send you to Occupational Health to consider what adjustments can keep your absence low rather than assuming it will be high.

Having had an employer with shockingly bad attitudes towards mental health/ disability, I would also ask if you want to leave your current employer and risk problems. It's disgusting that all employers don't follow the law and have good attitudes, and I am appalled that I am even asking or suggesting that you stay where you are, but reality is not ideal.

It would be discriminatory for them to refuse you the job - potentially both direct discrimination and also discrimination arising from disability - just on the basis of either your depression or your absence record - and so I doubt they will as their HR advice would be just that. BUT if their attitude towards you once you start the job is poor, that will be of little comfort.

Good luck.