Employment Tribunal (UK)

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I'm taking my employer to an employment tribunal (disability discrimination and constructive dismissal) - it is mainly centred around another disability, but my Asperger's also plays a part.

When I was taken on my employer knew all about my Asperger's and I requested two adjustments (one to my location in the office, and the second for written instructions)

I never received written instructions but didn't pursue the request because I saw how busy everyone was and I would've added extra work to their already hectic schedule. I just coped but don't think I understood instructions as well as I would have done if they had been written. I tried making my own notes but would frequently miss things if my line manager was making instructions up as she went along.

Trouble is I want to comment on this in the tribunal (it added to the stress) but I don't know if there's any written documentation that I actually asked for this adjustment. How would I find out? My boss is currently not allowed to converse with me.

Also, would I be in the wrong because I didn't follow up on the request?

Hi Kirsty
I am sorry you are having a stressful time at the moment, my hubby had to take his former employer to an industrial tribunal and he was so stressed out by the whole experience (and he is NT, though sometimes I think he has AS traits)

Who is helping you with your case? Have they advised you on how to obtain this info?

Did you keep a copy of your original request for these adjustments?
Did they change your office location on the back of this? - that would prove they did recieve your request. Just a thought??

The NAS have some useful links that might be worth a look at:
Disability Law Service, 39-45 Cavell Street, London E1 2BP; tel: 020 7791 9800, Monday to Friday 10.30am - 1pm and 2 - 4.30pm; email: [email protected]

Good Luck
x

Hi

I should be getting a solicitor within a few weeks, hopefully they will give me some pointers - I just wanted to try and make a start (I'm a bit impatient like that!)

I was sat for a long while where I requested to be sat, then there was an office refurbishment and I again requested I be sat in a corner, the plans changed twice (both times my desk was repositioned) and then on the day I went in after the refurb I had to have my boss physically change the direction of my desk because they'd disregarded my request again. I felt like I was talking to the wall.

Unfortunately both the request for written instruction and the request for my preference to location in the office were verbal, I doubt my boss wrote them down.

I will try the DLS - thank you for the info

Just be such the solicitor has experience of ASD
Keep in touch

Unfortunately it'll be pretty much impossible to find a solicitor who understands ASD as my house insurance company are paying for the legal advice. You have to take what you are given. Having said that, I've been given what can only be described as a consultancy firm - I'm going to ask them to switch as I don't believe they're the "best" like the insurance company say they are. They're probably the cheapest!

This sounds a tough situation.
I know it doesn't sound relevant, but have a look at the anti-bullying website, it's got good resources on employment law & example cases which can help get your thoughts in order. It covers general discrimination so isn't just for bullying cases.

Link

If your solicitor is any good they could advise on the lack of written evidence. If it comes to interviewing others in the office they could at least corroborate aspects of your story, such as your desk being moved.

That plus Aspergers disclosure at the outset would tell it's own story - ie you made known your disabilities/AS known to your employer, AS is documented as meaning the person doesn't react well to verbal instructions or change, so the very lack of any written instructions from your employer can be proof that they're not accomodating your declared needs. The absence of written is proof itself - and if they magic up some papers or emails then there will be no receipt you signed or email you replied to, so they can't prove you received it. It works both ways

Just my tuppence worth. Best of luck (or should that be 'best of solicitors'?) & try not to get too stressed. It will be a tough time but credit to you for fighting and not letting them get away with it.

When you requested both adjustment did you do so verbally or did you provide written documentation to the employer perhaps in the form of a letter. If you did you can request copies of the documents from your employee file. Also you will needed to have disclosed to your employer formally regarding your diagnosis and also the profile of abilities that you have. Once you have these documents. It is up to your manager to provide evidence that she did provide you with the requested adjustments not you. I'm currently in talks with my employer regarding their failure to be consistent with my adjustments. Just because your fellow employees and management are "busy" it doesnt give them justification to disregard their duty of care to you as an employee.

Nier - thank you for the link. I will definitely read through the info.

I hadn't thought that 'the absence of written is proof itself' - so thanks, that's certainly something I will raise.

Angelik - It was a verbal request. But interestingly I was taken on as a 'disabled trainee' - this was actually illegal and they have since had to repay me a sum of money - so just by being employed as the 'trainee' they acknowledged I was disabled.

I discussed with them my requirements at interview stage and also had support from Worklink (government agency) in setting up adjustments ('though there were only two) and making sure my boss understood certain problems I may encounter. This was all verbal but I reckon there will be an email somewhere that he sent to the rest of the team explaining the adjustments. I dunno whether anyone will have kept it though.

I should've said I have had to resign due to stress.

Hi Kirsty

I probably should have worded it as 'evidence' rather than 'proof', as they could claim to have been cack-handed and lost the original confirmation of adaptations & all written work instructions since, but if they can't show any of these it is pretty strong evidence that they're lax in their compliance to your specific needs.

If you get a chance, take a look at the books by Tim Field, his 'Bully in Sight' is an excellent book, again talking about employment negotiations & the games they will play, and a lot on stress/PTSD caused by workplace situations. Can't recommend it enough as it just plainly sets out all the avoidance / blame / nasty behaviours that bosses etc will do in order to avoid admitting fault or settling. It's very detailed about the symptoms & effects of stress as well.

Post again if you can & let us know how you get on.

I've now been through the internal grievance procedure and I have my ex-employer's response. Within this was a response from my boss and some of this things he has written are quite nasty - he's brought up things that are of no relevance to my grievance or the problem around my other disability (ME).

He's said that I did not mention having written instructions yet I am 100% sure I did. And that there's no evidence of any of my adjustment requests.

He said if I had requested written instruction then it would have placed a burden on my team and they probably wouldn't have been able to do it. Could they get away with this? What if a deaf person went for the job (and was the best candidate) and needed a sign language interpreter - would this have 'placed a burden' on them too?

He also said he did his own research into AS and knew what I would find difficult. He's not ever said he asked me what my issues were. Why would someone do an internet search but not ask the sufferer themselves? We talked about sensory difficulties at the interview, but little else.

He's said that learning to deal with my 'discomfort' was part of my personal development? I'm not sure I understand this. I took it to mean he thought if I was put in situations I felt uncomfortable with then I'd get better ....?

The most ridiculous thing is he's brought up the fact that I did not attend team lunches. This was not part of my contract, nor were they 'working' lunches - they had to be paid for by the employee and came out of the employee's time. I did attend a team lunch but I missed about 3/4 more ... why is this such a problem? I did the work I was supposed to do, no one had a problem with my work - so what if I didn't share a pizza with them once in a while?
I would socialise in the kitchen at work and had no problem with getting involved in conversations. I was quite proud of the fact that I managed to converse with so many people but to be criticised for not going to lunches just makes me wonder why I bother to put any effort in.

He's also implied that I am an unreasonable person ...

There's more but the lunch thing definitely got to me. The tone is terrible too, very haughty. This was a company who has the investors in people logo, and the disability symbol but it's pretty obvious they don't really care ...

I'm now thinking a life on benefits seems quite nice! My confidence has taken a big dip

really sorry kirsty for the tough times you had

i am pretty paranoid of approaching employers for the very same reasons you have stated. i must admit i don't feel any more enthusiastic to find myself in the workplace after reading this post!

I do get annoyed when NAS members tell me "...but it's all fine now harry! people with AS can't be discriminted any more" because I know that the "BS" is rife within the workplace (especially office work)

i'm sorry i'm not really able to help but i hope that good will come out of this for you! keep fighting the case; good luck

I've never managed to get a paid job due to my Asperger's and I am now nearly 31 years old. I do, however, have a first class honours degree and a masters. I just can never get past the interview stage.

I am considering an employment tribunal against an employer who I feel treat me unfairly at interview recently and I feel I have some tangible proof of this. Chances are I will never get any kind of legal support or backing as I have so little money and legal aid is not possible for Employment Tribunals. I posted about this on this forum here www.consumeractiongroup.co.uk/forum/sho ... rimination but sadly feedback seems to be lacking. I also posted about it at http://forums.moneysavingexpert.com/sho ... ?t=3188290 and the general response seems to be if I am unable to do the job then that means it's perfectly fine to reject me due to my disability.

The first stage is to send the employer a request for information under section 138 of the equality act. See http://equalities.gov.uk/default.aspx?page=1688

There is lots of useful information on this site http://equalityhumanrights.com/advice-a ... r-workers/ and also at this link on the same site http://equalityhumanrights.com/advice-a ... ion-cases/ which gives some guidance on questions you might include in the s138 form.

There are some previous cases which may give you some hope. These include:

Isles V Ealing Council http://assupportgrouponline.org/tcase.htm
Hewett V Motorola Ltd http://employmentappeals.gov.uk/Public/ ... 312004.doc

I am aware there is another case which has been successful based on here http://eurogamer.net/forum_thread_posts ... _id=195931 but know little more than bits I have managed to find posted by that user.

Sorry about non-clickable links, I am restricted due to being a new member. (just edited now I have 5 posts.)

Last edited by anewman on 12 May 2011, 5:13 pm, edited 1 time in total.

Unfortunately, employment law and industrial tribunals tend to be useless unless you have a clear-cut case of blatant discrimination (e.g. your employer fires you because you are a "ret*d", and you have an audio recording of him saying this). Similarly, lawyers want cases they think they can win, and win a lot of money.

I've had similar things happen to me, for which I was labelled "not a team player". When I finished university and started working, my attitude was, "I show up to work on time (and sober). I do my job. What's the problem? I come to work to get work done, not to sit around and chat. I'm your employee/ co-worker, not your spouse. If you want a friend, get a dog." Unfortunately, most modern workplaces are all about networking and playing office politics. Getting the job done and done right is of secondary concern. Oh, and to make matters worse, when I try to be friendly and sociable, I invariably end up pissing someone off or creeping someone out by saying something "rude and offensive". Such is life with autism/ asperger's.

My "solution" was to find a job which, by its very nature, requires very little social interaction. Management seems happy with me because I do my work and do not screw around. The catch is it is a low level and hence low paying job. Also, if I wanted any sort of career advancement --which I do not-- then I would have to be more sociable.

To me "not a team player" means the justification for rejection *is* your disability. See the Hewett V Motorola Ltd case for an example of this.

From http://hief.org.uk/sitebuildercontent/s ... olkit7.pdf

You don't need a lawyer to take a case to employment tribunal, I believe, but I suspect the process is intimidating to the average person - never-mind someone with Asperger's. Seems there are plans to make you have to pay to take a tribunal case, supposedly to get rid of vexatious claimants - but such a claim is vexatious in itself, the whole point of the forms process before a tribunal case (ET1 etc) is to make sure there is a case.

I am considering taking an employment tribunal case against an employer who chose not to hire me after an interview. My aim would be to bring some sort of benefit for people with Asperger's who find themselves in the same position. If I could set some sort of binding legal precedent, that would be of benefit to me and many more people with Asperger's that would be great.

That's true. Employers are now cleverer about how they 'discriminate'.

Thanks for the links. I will look through them. I did read your MSE forum posts a while ago, but things had fizzled out be the time I did.

There are no win no fee solicitors who could help you, but check their credentials first, and read contracts carefully.

If you have house insurance (or you live with someone else who owns the house i.e. family) check the policy as some, like mine, offer to cover legal fees.

My tribunal is not technically to do with my AS but things have been raised in the grievance procedure which suggests my boss has no real idea what AS is.