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Is this indirect discrimination?

Discussion in 'Workplace dilemmas' started by FrauleinGM, Dec 13, 2019.

  1. FrauleinGM

    FrauleinGM New commenter

    Hi all
    I am in need of advice.... my school (independent) has a policy that states that teachers get 50 days sick leave on full pay and 50 on half pay. This isn't per year - it is in total. So you gradually use up your entitlement over the years of service and the allowance will only reset if you have no absences at all for a continuous 12 month period.
    I've recently been diagnosed with a heart condition which OH tells me is classified as a disability. I'm currently waiting on their report and intend to discuss it with school after Xmas hols (they triggered a formal absence procedure due to my absences this term. The meeting was meant to happen earlier but I wanted to get an OH report first).
    The nature of my condition is unpredictable. Basically what happens is that I get episodes of arrythmia and while they happen I am unable to work for 2-3 hours (doctor said I'm not fit for work during those few hours).
    They've happened at school before and I've had to miss some lessons as a result. This is always recorded as a sick absence, even if I taught 5 lessons that day and just miss the last one.
    While the frequency of episodes has decreased with medication, it is nor realistic to think that I could go without one for 12 months. Therefore, due to the condition, I have no chance of ever hitting that 12 months of no absences targets and 'resetting' my entitlement. So I will just eventually run out of any sick allowance even if my condition improves and I am otherwise functioning well at school.
    I cannot help but think that applying this policy to someone with a disability seems a bit discriminatory? It is infinitely harder for me to have 12 months of no absence that for someone without my condition. In fact, I would say that it is impossible.
    I've looked up indirect discrimination and have found the following: 'Indirect discrimination is when there's a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others. The Equality Act says it puts you at a particular disadvantage.'

    Do you think I could fight this or am I way off in my judgment of this situation? I'd really love to get some opinions on this, especially before my next meeting with them...
  2. Piranha

    Piranha Star commenter

    It sounds like that to me, but this is an area where really you need expert legal advice, not the opinions people like me are happy to give on this forum. I would ask your union. I doubt if you will be able to fight your case by yourself.
    Flanks, Morninglover, strawbs and 2 others like this.
  3. Rott Weiler

    Rott Weiler Star commenter Forum guide

    There have been several important legal cases about how employers should make "reasonable adjustments" to their sickness absence policies for people whose absence is related to their disability. Not making adjustments can be discriminatory the Equality Act.

    But the law on this is complex, beyond the scope of advice that can be given by non-lawyers on this forum. Consult your union (at regional level) or a specialist employment solicitor asap.

    Have you formally advised your school that your medical condition has been diagnosed as a disability under the Equality Act?
  4. Abitofeverything

    Abitofeverything Occasional commenter

    This is a barbaric sickness policy!
    Eszett and agathamorse like this.
  5. FrauleinGM

    FrauleinGM New commenter

    Hi. My OH report hasn't come yet but it should next week. The OH Doctor told me what she was going to write and that my condition would be considered a disability. So the school will have it in writing in the next couple of weeks.

    I already have the union involved due to absence management but they're saying at this level it needs to be the school rep accompanying me to the meeting. I've only just found out about the 12 month rule today so haven't asked anyone about it yet. It does seem unfair
  6. Rott Weiler

    Rott Weiler Star commenter Forum guide

    There's 2 different things here though. Who can accompany you to a meeting, and where you can go for advice.

    For union advice on whether the policy and practice is discriminatory it needs expert knowledge beyond what a school rep is likely to have. Where you go to in your union for advice is nothing to do with the school.

    If the meeting is still at the informal stage (ie not a meeting that could decide to dismiss you) the right to be accompanied is limited to what your school policy says. So if it says only school-level union rep that's probably correct. But if it proceeds to a more formal stage where dismissal is a possible outcome you are entitled by law to have a union official from outside the school accompany you.

    At the forthcoming meeting make sure that you expressly state that your medical condition has been diagnosed as a disability under the Equality Act, refer them to the OH Report for confirmation, and make sure this is recorded in notes/minutes of the meeting. Under the Act the Employer's duty to make reasonable adjustments and not to discriminate is generally only triggered when the employer actually knows that you are disabled so it's important that you create clear written evidence that the employer does know.
    strawbs, FrauleinGM and agathamorse like this.
  7. FrauleinGM

    FrauleinGM New commenter

    Thank you. It is formal absence management meeting, stage 1. I don't know what they want to achieve by this - is dismissal a possible outcome, even if my absences (about 20 days in total) were caused by a condition defined as a disability and some of them with doctors note confirming that this is the cause?

    I will write to regional union rep again about the policy as soon as I have the OH report.
    Feeling so worried now - I've worked so hard and feel like they would happily get rid of me now ☹️
  8. caterpillartobutterfly

    caterpillartobutterfly Star commenter

    I'd look for a new job in a more sensible school if I were you.
    sabrinakat and FrauleinGM like this.
  9. ridleyrumpus

    ridleyrumpus Star commenter

    It is not unheard of for absence due to a disability, or some part of, not to be counted towards and absence targets.

    As you rightly point out not doing so would be discriminatory.

    Talk to your union.
    FrauleinGM likes this.
  10. ridleyrumpus

    ridleyrumpus Star commenter

    Or ought to have known.

    An employer cannot claim that they were unaware an employee is covered under the EA if the employee has had time of for depression, uses a white stick, wears a prominent hearing aid etc etc.

    Yes the employee may make the employer explicitly aware but it is not a deal breaker if they haven't.
  11. Rott Weiler

    Rott Weiler Star commenter Forum guide

    I know, that's why I qualified it with "generally" to avoid adding a lengthy description of constructive knowledge.
    ridleyrumpus likes this.

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