Discrimination is unashamed, and it is direct and often very deliberate. People are intimidated, harassed, humiliated, and dismissed from their work because of their disability all the time.
It is often still not seen as acceptable, in the private AND the public sector to be disabled. It can be very acceptable in the workplace to ostracise, to mock and jeer those who have disabilities.
Practical ‘jokes’ against disabled workers serve to facilitate bonding of the ‘in’ group. To this end, disabled workers are often subject to constant, daily, and horrific abuse by co-workers. This often last for years until the disabled worker just gives up and leaves. To add insult to injury, the worker will then find himself or herself sanctioned when trying to claim benefits!
If the abuse is not actually encouraged by the management, it often turns a blind eye to the abuse. When the disabled worker turns to his/her line manager for support, it is often not to be found. Instead, the disabled worker is seen as not pulling her/his weight, of upsetting the other workers, of undermining company morale etc.
Trying to resolve the matter informally by trying to enlist the help of a manager can make things much worse, leading to further abuse. The exit of the disabled worker from the company can be by way of resignation, or by a summary dismissal – in fact an unfair dismissal (dismissal for a discriminatory reason is described in Statute as an automatically unfair dismissal, even where a worker has worked for less than one year with the company, and thus in normal circumstances only being eligible for compensation for Wrongful Dismissal).
Of course the dismissal might be dressed up as a resignation (this being demanded in exchange for the P45 and holiday pay that is owing etc being given. Without the P45, accessing benefits is difficult). An incident might even be staged by the employer, provoking the worker into a reaction, which then leads to dismissal for gross misconduct on the part of the worker. Or the worker might be overloaded with work, set up to fail, as in the following case, until she/he gets the message, and resigns or just walks off the job.
Company policies, such as Equal Opportunities, Sex Equality Policies, Grievance Procedures etc are often not worth the paper they are written on. Even worse, they are often just a smokescreen, a disguising of the real policies in effect in the company, used in protecting it against workers who might wish to try and enforce their rights.
It is of course difficult bringing an employer to book at the best of times, as discrimination law is complex. Bringing a case to tribunal involves a massive effort on behalf of the worker’s representative, and the worker. If you are disabled, and maybe not in the best of health, daily life is difficult enough, without undertaking a tribunal case. Employers know this, and take advantage of it.
Productivity of the individual worker, her/his history of loyally working for the company often has no bearing on the case. There is almost no gratitude or loyalty nowadays by employers to their workers, as evidenced by the following case.
It involved Jane(a pseudonym)an employee of a public sector corporation with a fixed-term contract who became disabled as a result of stress caused by the company. She had been ordered, virtually without notice, to supervise a group of demanding young adults on a residential, 'outward-bound' course. The stress was such, that Jane became very ill with a crippling disease shortly after the course ended. This resulted in her being frequently wheelchair bound. It is now known that her illness will last for Jane's lifetime.
Jane coincidentally to the illness was suddenly found to be surplus to requirements.
In order to convince Jane that she was indeed surplus to company requirements, a campaign of harassment and intimidation was initiated against her. The harassment, the intimidation and the humiliation that was meted out to Jane was carried out over a period of time until further illness, most likely stress-induced from the discrimination she was suffering forced her to take sick leave.
On returning from a bout of illness, Jane was ushered into the manager’s office without explanation, or even being allowed to take off her coat. She did not have any possibility of objecting to this as another manager took it upon himself to wheel her into the office without even asking her.
Jane, a very highly regarded and well qualified professional, later said that she had never been so humiliated in her life. She said she felt shocked, and utterly powerless and defenceless. She was shaking and crying whilst she was being told,without warning, to resign her post.
Saying in tears that she loved her job did nothing to alter the decision. If she did not go, Jane would be sacked. After leaving this meeting the worker went to an advice agency, and was told to put a grievance in, to mention that her dismissal would be categorised as an unfair dismissal, possibly discriminatory, and that she could under such circumstances leave and claim constructive unfair dismissal.
The Jane did not however wish to leave, and was determined to stay put in the job she loved, helping vulnerable young adults. At that moment in time she was not thinking of the tribunal route, but of asserting her rights at work, and of resisting the attempts to bully her out of her job. She was however to find that workplace bullying can be very persuasive in convincing workers to resign.
Jane returned to her desk. But her desk was not to be found. It had been replaced by another one, one which her wheelchair would not now fit under. Jane tried to log on to her computer. The message on the screen flashed “Access denied”.
Jane was ordered to return her mobile phone, something that was essential in her job, as she moved around different sites and needed to keep in contact with vulnerable clients and the different offices.
To use the toilets Jane had to suffer the indignity of asking someone to unlock the disabled toilets. The disabled lift to enter the building was more often than not, out of use. Jane needed to use the car park, and asked if she could be allowed to park in the disabled parking bay.
“Yes of course,just as soon as you have your blue badge”, was the retort of her line manager. Jane attempted to plead with the manager, as she needed this parking spot urgently. In any case, no one else was using it. She told the manager that getting the blue badge would take a number of months, as one first had to have been given a positive response to a benefits claim, the Disability Living Allowance mobility component, which often involved an assessment being done by a doctor on behalf of the Benefits Agency.
But there was no flexibility. The rules had to be observed. No parking spot would be made available until the blue badge was shown to the management, notwithstanding the fact that this company rule had only now been devised.
Jane was most obviously disabled. Her consultant at the hospital had diagnosed a debilitating disease that was sporadic in its effects, but was nonetheless very painful. When the disease flared up it meant that Jane was bound to a wheelchair.
Jane did not even get the use of one of the normal parking spots, but had to use the street parking outside the company, necessitating the crossing of large area to get to her building. Jane received parking tickets when she did not return quickly enough.
Formerly this highly regarded worker would in be approached respectfully if a manger wanted to talk to her. The manager would come up to her desk to consult with her.
That the employee was now in a wheelchair, or walking on crutches, meant that she obviously did not need such outward manifestations of respect any more. Her line manager would call her to him, even if she was only a couple of metres away from him.
For him it was a matter of a few paces to reach her. For Jane it involved great effort. To her manager this must have been obvious. Whether it was intended to humiliate and inconvenience Jane, or was just an automatic and unconscious adjustment that her line manager made to Jane's new office status is not known.
The feelings of humiliation and of stress however continued to mount. Jane could not believe the treatment she was receiving.
As if these petty and mean spirited actions were not enough, Jane was without warning thrown off a course that she had been regularly attending over a long period, and which would have meant her in the future being able to apply for more senior posts in her line of work, that of mentoring and teaching. The reason given for terminating her participation was that the course rooms were not accessible for a disabled person! A more cynical example of ‘consideration’ for someone stricken by disability has yet to be thought of.
Jane's employer later tried to further justify this discriminatory behaviour, saying it was in keeping with the need to make 'reasonable adjustments' for a disabled employee under the DDA (Disability Discrimination Act 1995). WorkRep warns other employers who might think up such a creative 'justification' under the DDA (which does allow a defence of 'justification' to discriminatory behaviour in disability discrimination cases), that such discriminatory behaviour would not be easily explained away to a tribunal.
Apart from the discrimination issue under the Disability Discrimination Act which outlaws indirect and direct disability discrimination, Health and Safety issues were totally disregarded when it came to this disabled worker.
Jane had the right to reduce her working hours, but her employer refused this, as it would be unfair, and would 'set a precedent' to the other non-disabled employees. After the involvement of Jane's doctor her employer eventually relented and agreed to her part-time working, a reduction in her working hours from 30 down to 16 hours. The employer however forgot to reduce the workload. The workload was doubled!
This was the last straw. At this point Jane, despite her efforts could not physically cope any longer, and became seriously ill with the effects of stress. Her psychological symptoms, apart from the physical symptoms, were later to be described by her doctor as PTSD (Post Traumatic Stress Disorder).
There are too many instances of bullying, harassment, intimidation and discrimination to include in this article, but suffice it to say that the series of events that this worker was subjected to was shocking, not least because the several layers of management involved must have known better, and should have acted differently.
The stress involved for this worker meant that rather than continue to work, she had to take leave of absence and sick leave. Her sick pay was a pittance, and her holiday pay was withheld. Her pension was not contributed to. The employer could not claim ignorance of the Disability Discrimination Act as regarded the disabled employee as the corporation’s work involved managing and implementing programmes of educating others in best practise as regards disability. The corporation itself was happy to flout discrimination law however, when it suited its purposes.
The case lasted over 6 months with the other employer who had hired 2 separate teams of lawyers to defend (there were complications in this case to do with TUPE [Transfer of Undertaking]regulations).
A substantial out of court settlement was achieved for Jane through ACAS, thus sparing Jane the necessity of having to attend the Manchester Employment Tribunal (formerly known as an ‘Industrial’ tribunal), with all the further stress this would entailed. To WorkRep's knowledge, no manager was punished, formally or otherwise, for Jane’s treatment. Indeed all the facts of the case as put by Jane (the ‘claimant’) were vigorously denied by the employer’s (the ‘respondent’) legal team. A junior manager did however leave whilst the case was ongoing. Was he the 'fall guy'?
As is usual in the settlement of cases, a confidentiality clause was written into the settlement agreement and therefore means that details identifying the corporation and persons involved will not be disclosed.
Disclaimer
: articles and information published by WorkRep are intended for general information purposes only. No representations or warranties of any kind, express or implied, about the completeness, accuracy or reliability of such information are made.
© Workrep 2007