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Andrew Crudge

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Ask the Expert: How can I keep my job with an undiagnosed disability?

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The question

I have developed a disability that requires a few reasonable adjustments in the workplace.
 
Access to Work has agreed to fund an assistant for me, which would be the most expensive.
 
But at the end of April, I was sent home from work after several meetings between my union and employer, which were intended to try and get the adjustments put in place.
 
The reason given was that they couldn’t meet the rest requirement on my fit note, even though I had worked for the previous three months since the sudden worsening of my condition and made it clear that, if I could take the natural rest breaks during the school day (I’m a teacher) without doing break duties, I would be able to manage.
 
I haven’t been medically suspended (and will be going onto half-pay in the next few weeks), yet I am not being allowed to work. My union is supporting me and trying to convene a meeting to sort things out, but my employer is being difficult about it.
 
To be honest, I am feeling desperate as I love teaching and want to work. Being at home without any purpose is making me feel very stressed and depressed. It isn’t helping that I don’t have a diagnosis as yet and I’m being passed around from one specialist to another in the NHS – all I know is that it isn’t something life-threatening.
 
I’m looking for any advice or information that would help me keep my job, hopefully without having to resort to an employment tribunal?
 
 
The legal verdict
 
Andrew Crudge, solicitor at Thomas Eggar
 
Under the Equality Act, a disability is defined as a serious and long-term physical or mental impairment, which has an adverse effect on your ability to carry out normal day-to-day activities. 
 
Provided your condition satisfies this definition, it would be unlawful for your employer to treat you less favourably because of your disability, and they would be under an obligation to make reasonable adjustments to remove the effects of your disability.
 
From your query, it appears that potential adjustments have been identified, but your employer is suggesting that they are unable to meet the requirements in your fit note. Whether or not they can lawfully refuse to make the adjustments would, therefore, depend on whether such adjustments are likely to be considered ‘reasonable’. 
 
Without full details as to what these adjustments would need to be, it is difficult to comment on whether your employer could reasonably refuse to implement them. However, as Access to Work has agreed to fund the most expensive one, your employer’s refusal to make other changes may be unreasonable. 
 
Until your employer is satisfied that you can safely return to work, they are within their rights not to allow you to recommence your role. Therefore, in order to speed up this process, I would recommend that you ask them to refer you for an occupational health assessment. 
 
This assessment should be able to precisely determine the reasonable adjustments that would be required to help you return to work. Although the note from your GP is helpful, an occupational health adviser should be able to give much more specific advice, given their knowledge of your working environment.
 
Ultimately, if your employer refuses to make reasonable adjustments, they may determine that it is necessary to dismiss you on the basis that you are not capable of carrying out your role. If this were to happen, you could bring a claim if you could show that the required adjustments were reasonable. 
 
However, I appreciate that you want to avoid the employment tribunal route, and so you should focus on obtaining an occupational health report in order to demonstrate to your employer that the adjustments you require are reasonable.
 
Andrew Crudge is a solicitor in Thomas Eggar‘s business services team.
 
 
David Ludlow, head of employment law at Barlow Robbins
 
It may well be the case that your employer does not realise that you are disabled, if indeed you are.
 
Access to Work may have agreed to fund an assistant for you, but you need to ensure that you or your union have provided your employer with sufficient medical information to demonstrate that you are disabled, or at least put them on notice that you may well be.
 
Your employer needs to ascertain the true medical picture and, in view of what you appear to have been saying to them, find out whether you have a physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. 
 
It appears that there have been discussions based on an assumption that you are disabled, but your employer is not duty-bound to make reasonable adjustments if they do not know, and could not reasonably be expected to know, that you are disabled and likely to be put at a disadvantage by the requirement to do break duties.
 
If your employer does know or ought to know that you are disabled, they should take such steps as are reasonable – including quite possibly allowing you to take the natural breaks – to avoid you suffering the disadvantages that arise from your disability. But your illness may not be obvious.
 
Your employer appears to be basing their decisions to date on the limited information contained in your GP’s Statement of Fitness to Work – the “fit note” – and representations from your trade union.
 
It is sometimes appropriate for employers to send employees home if they think that you are unwell. They might reasonably believe that it is not safe for you to be at work. Your employer might be taking a reasonable, albeit different, view from your doctor. 
 
Discussing and consulting
 
As you want to return to work and not bring a tribunal claim, the way forward is for you to write to your employer in order to either provide them with, or assist them in obtaining, an up-to-date and comprehensive medical report from your GP in the first instance.
 
The Equality and Human Rights Commission’s Code of Practice on Employment makes it clear that employers should “do all they can reasonably be expected to do” to find out if an employee has a disability, but you can facilitate this process.
 
If, in view of the lack of diagnosis, your GP feels that it is advisable, you can consent to your employer obtaining an independent medical report from an appropriately qualified occupational health expert.
 
Whether requested by you or your employer, your GP and any other medical expert should be asked specifically to address whether, notwithstanding the fact that there is no diagnosis, you are disabled in light of the Equality Act’s definition as set out above and, if so, the extent of that disability.
 
Crucially, the reports need to spell out whether there are any reasonable adjustments that they feel can be taken, even if those adjustments require the co-operation of your colleagues in taking on some of your duties.
 
In your letter, you should also impress upon your employer that they need to discuss all of the medical evidence with you, with a view to reaching agreement over what you can and cannot do and to identify the reasonable adjustments that they should make, which includes, of course, making reference to the Access to Work funding.
 
The more formal your letter is the better. It may also be appropriate to describe it as a grievance by referring to your employer’s grievance procedure. Your employer will then be under a duty to engage with you on the issue, even if they do not understand their duties to consult with you over your possible disability.
 

David Ludlow is head of employment law at law firm, Barlow Robbins LLP.

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Thank you.