Equality Act/Occupational Health

[NaToth]

I’ve written about this before, but can never find my old posts on the search for some reason, and I’ve had some good advice, which has got me this far.

After seven years of being fobbed off by my GP, I was diagnosed last August with a chronic, incurable, relapsing, but hopefully manageable heart condition. After I had an angina attack in the office, my manager asked me if I would go to Occupational Health and I agreed. I thought during the assessment that the assessor didn’t ‘get’ it and when the report came, it was full of errors and omissions and, in particular, in answer to a specific question, she had said that I would not be protected by the Equality Act, because I had not been diagnosed long enough.

I raised these issues with HR, who went back to OH. The assessor stuck to her guns on the Equality Act point, but sent me the guidance, which actually made it clear that I would be protected. I went back to HR and asked for a meeting, which took place at the beginning of February. I felt patronised, to say the least, and the best HR could offer was to put the subsequent e-mails on my file with the report.

On reflection, I decided this was not acceptable and that I did not want incorrect information on my file, whatever might be with it by way of explanation. One example is that the report says I had three episodes of my condition last year, when in fact I had twenty two. A bit of a difference! I e mailed HR again and asked them to delete the report. In response I have received a fluffy e mail saying “Unfortunately we cannot delete the existing report as it does exist in their records and ours but, I can certainly put a note on it that you are of the opinion that it does not reflect your conversation with them or your condition.” So basically, I am no further on.

In the meantime, I have spoken to my union rep, who agrees with me on the Equality Act point, but does not want to get involved, and to the Equality Advice and Support Service, who say I am covered.

There aren’t really any issues with reasonable adjustments at the moment, but I would like my employers, through HR, to recognise that I have a disability within the meaning of the Equality Act, 2010. HR have not so far engaged with this point at all. Do I just e mail them again and see what comes back on that specific point, or is it time to make a formal complaint about how the whole thing has been handled?

Any/all advice gratefully received.

I would cross the bridge when you come to it, you could also speak to acas for advice.

The quick and easy way to resolve this is:

1. GP letter (ideally one they send you electronically) stating you have been formally diagnosed with long term angina with some medical history of times you've needed to attend your GPs surgery complaining of the symptoms eg dates of appointments and high level statement that you're on medication for the condition. As a long term condition, by its nature it is covered by the Equality Act. Your company Occ Health don't get to overrule your GPs diagnosis. Send it to your employer and ask for it to be placed on your file. That gives you coverage in case of any future need for reasonable adjustments.

1. If I recall in a previous thread you started you were suffering from fatigue and you'd sometimes needed to recouperate at home after an angina attack. Under RAs you could ask to work from home at times you suffer an attack (and not be penalised on your absence record) if it enables you to avoid journeys to work to manage fatigue and continue performing your role. The principle of Equality Act is you are at a disadvantage and this helps put you on a level playing field with others not suffering angina.

If I were you I'd think about whether to formalise this arrangement at a point where your condition needs to be managed more proactively. If you're coping for now, then just keep it in mind.

Thank you. That’s helpful. I do have a letter from the consultant confirming my diagnosis.

Of course, on Friday, I had an angina attack at work when I was alone in the building, which was a bit scary. Luckily the medication worked, but I still felt unwell for the rest of the day and felt unable to go home.

Difficult.

Why doesn't the union rep want to get involved? Im not sure they get to choose - if you want them involved they should be. They can ask for someone outside of the organization to represent you if it's too hard for them to do it.

It's not clear. This is what she said:

"I am sorry you are having so much hassle.

I guess whether you wish to pursue getting the records set correctly is up to you. However, if your line manager is allowing reasonable adjustments and HR have allowed you to put on file your concerns you could just leave it."

It is not clear whether my line manager will allow the adjustment I need. That won;t be resolved until the situation arises again next winter..

So, I went back to the union and asked them if they could help me deal with HR and they said:

“I am sorry you feel so frustrated by this.

I don’t think they will move on where they are at the moment. However, you say you have no issues with your workplace at the moment. I would suggest you ask for an assurance that if any issues should arise then you could have another assessment. I think this should happen anyway if any new issues arise. If they have recorded you are unhappy with the current assessment, I think that is as far as they will go.”

So, basically, I now have a lifelong, relapsing heart condition which everyone I have spoken to believes should be regarded as a disability under the Equality Act, everyone that is, except the OH assessor, who said it didn’t count because I hadn’t been diagnosed long enough, and HR, who don’t have it in the OH report, because the assessor got it wrong, and therefore won’t engage with it.

In the meantime, although I don’t require any adjustments as such at the moment, I have daily symptoms and a couple of weeks ago had an angina attack, without warning, when I was alone in the building with a service user, which is not good.

I don’t know what to do now.

You could try to raise a complaint about your treatment with either a member of your line management or HR. Taking with you evidence of your diagnosis and details of the reasonable adjustments you are seeking. It wouldn’t be easy on you to do this l, complaints are usually pretty hard on the complainant

So I spoke to ACAS and they advised me that this needs sorting out before it becomes a disability discrimination issue.

Acting on their advice, I emailed HR, enclosing my diagnosis letter from the hospital and some information from the British Heart Foundation and asked them to confirm that they would accept that this condition is a disability. The reply came back within minutes saying that only a Court of law can decide whether I have a disability or not. They specifically say that OH can't make this decision, even though OH did and got it wrong.

I feel that I have reached the end of my tether. In the last six months I have been sworn at by a colleague (I complained, but nothing was done), I was lied to by a colleague (ditto), I've had this to deal with and now a colleague has denied that a meeting we had ever took place and has basically lied about what I have been doing to save his own skin. That e mail came in, as they always do, just before I left for the weekend, most of which I have spent either drunk or in tears or both. I just can't do this any more.

I

OP, why do you need your employer to agree that you’re disabled if you don’t require any adjustments?

They are right that only a judge can give a legal determination on disability. It’s also a very common thing for employers not to openly admit you have a disability, particularly in a situation that is already becoming contentious.

OH is wrong when they suggest you haven’t been diagnosed long enough to be legally disabled but you know that - you don’t have to have a clinical diagnosis at all to be disabled in many cases. But the fact that your GP has already confirmed it’s a lifelong condition probably means you meet that particular test anyway.

I really don’t think it’s worth getting worked up about. What would your employer agreeing with you about your condition actually accomplish?

Then they would be obliged to consider reasonable adjustments and I would be able to get over the issue of there being incorrect information on my file.

I've reported two adjustments that I need and nothing has happened, no discussion, no nothing, so I can't guarantee that anything will happen. I already know that will be against my consultant's advice to perform part of my job. Now it's questionable whether I can work alone after there was on,y me and a service user in the building and I had an angina attack. I reported that over a month ago and it's never been mentioned again.

ACAS clearly think it's worth pursuing and don't understand why HR have acted the way they have.

If only a court can decide, why did OH make a decision, albeit the wrong one, and put it in the report?

The previous poster is right that only a judge can decide what is legally a disability. OH can only give an opinion. But HR would be best advising that your employers assume that you might be as there is case law that employers can't just say "well OH said she is not disabled so she is not". They are expected to use their common sense. I can see why you would like adjustments agreed. I would ask for a meeting.

OP you previously stated that you didn’t require any adjustments as such at the moment - but that isn’t actually the case?

I don’t think you do have incorrect information on your file. What you have is an OH opinion that you aren’t disabled. What you’re looking for is an opinion that you are disabled, which you are never going to get from the OH therapist they used.

I absolutely agree with you on the lone working point - even setting aside any disability, your employer has a general duty of care and with your condition lone working may be a breach of their general H&S obligations.

If you need adjustments then I think the next step is a grievance - explain as background why you feel you meet the specific legal tests (the physical condition you have, why it substantially impacts your ability to carry out your usual day to day activities, and that it is long term as you’ve suffered for years and will do for the rest of your life) and then clearly set out which reasonable adjustments are required (lone working and anything else). They then have to investigate the grievance and provide you with an outcome.

If they don’t address the adjustments or grievance then you might need to look at ET proceedings.