British Snoring & Sleep Apnoea Association

Hi,

I was wondering if there were any lawyers amongst us out there, who might be interested in offering me advice re my current work situation, or even taking on any future case.

My employer is discriminating against me on the basis of my disabilty and is refusing to discuss the effect that my OSA has had on my performance, let alone consider any reasonable adjustments.

Any help,advice etc would be much appreciated.

Thanks

Tony

PS Thanks to Dan for allowing me to use the forum to issue this plea

just a question, is OSA covered by the DDA now?

Hi,

OSA is indeed covered by the DDA. This was confirmed to me by my GP, my employer's own occupational health advisor, by other members on this forum and by the DRC.

The following is the exact wording of the meaning of a disabilty as defined by the DDA 1995

1. - (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

It should also be noted that according to the DRC website, the fact that you are taking medication or receiving treatment to control your disability is irrelevant in determining reasonable adjustments as the effects of the disabilty must be considered as if no medication or treatment was being administered (i.e. the worst case scenerio). Therefore the fact that OSA leads to excessive daytime tiredness etc if untreated is the relevant factor, not that it can be controlled by using CPAP.

I think that most reasonable people would agree that OSA and it's effects certainly meet the criteria defined above

Hi Tony

I can't believe this. From what I've read you're being treated and it's working. How can work performance still be an issue if you're now OK. (Assumng you're now OK). I gues any half decent union official would wipe the floor with your employer. They're certainly asking for an eggy face if it goes to an employment tribunal.

If any performance issues were around your OSA, you're treated now and presumably your work performance is not a issue.

Are your employers stupid?

good luck and don't let them grind you down.

Big Ears,

In the immortal words of Francis Urquhart in Michael Dobb's House of Cards " You may think this, I couldn't possibly comment"

I certainly feel that the CPAP is working, although as I have not had any follow up consultations yet, I would not be able to say this with 100% certainty. However, I assume that the consultant at the sleep clinic would be able to check the data and provide me with this information if I needed it.

As I have still to get my test results back, I also cannot say for certain yet just how severe my OSA is as I do not know just how many apnoeas I had an hour. However, as everyone on here knows only too well, they do not hand out CPAP machines like Smarties and I got mine immediately after my sleep study, so it must have been pretty bad.

In fact the nurse's exact words to me in the morning were " you definitely need a machine, the results when you used the machine compared to the early part of the night were dramatic". I think you can assume from that that it must have been just a tad problematic!

As they temporarily redeployed me to an entirely different post it is difficult to tell how my performance in my old post would differ now that I am on CPAP. What I can say however, is that no-one has questioned my performance in my current post.

I think you can see that I am being totally honest and up front with everyone about the situation, and that I am trying to be as resonable as possible given the circumstances.

I have spoken to my union rep and we will talk to them yet again. However when you are faced with a culture of "institutionalised discrimination" (incidentally these are not my words but a direct quote from a senior and rather surprising source given their role in my organisation), then it really is an uphill battle.

It seems that they would rather do everything in their power to get rid of the problem, including acting on a report riddled with inconsistencies, inaccuracies and quite frankly, downright lies, rather than deal with the problem.

Anyway, thanks again for your support, it really is much appreciated.

Tony, I am disabled for other reasons. If you are disabled and a company feels you were unable to continue in your present post, they must legally try to redeploy you in another post that they deem would be more suitable to you needs. It seems your company has tried to do this so I don't know you have any legal grounds for a case of discrimination. They may not be very pleasant and it may not be what you want but that doesn't mean they have discriminated against you on the grounds of your disability. If your union isn't willing to take it forward legally, you may find it difficult to get legal support elsewhere but you could ask the DRC for their advice. If they feel you have a case they can offer to support you in a case.

Pinky,

My employer has temporarily redeployed me WITHOUT taking my OSA and hearing defect into account! Their justification is that I have a poor level of performance and therefore I am incapable of doing my job.

My union is willing to back me and I have spoken to the DRC who are also willing to back me.

I can assure you that I am not doing this out of fun or to be spiteful, but to assert my basic right to be treated fairly by my employer.

I know what the truth is and I will fight with every last breath in my body to get justice, with or without people's backing.

Oh and by the way, they have to consider making reasonable adjustments to your present job first (in consultation with you), before they even consider redeployment, something that they have conspiciously failed to do!

I did not imply for one second that you were doing anything out of spite - no one likes to feel they have been treated unfairly at work. I think the key to any case must be on what grounds you feel you were discriminated against when you were redeployed. Your employers felt your work performance had gone down so in that case redeployment is a decision they can make without reference to you - that is a managerial decision. If you feel that decision was discriminatory ie other workers work performances had also gone down but they stayed in their positions, then you have a case and your union will refer it to their lawyers. One word of advice from long experience in management of hundreds of people. Unions are never 100% on your side. They constantly want concessions from the employers for the good of the total workforce so they never push the boat out too far in the cases of individuals unless the case is blatant. The only way to find out is to put your rep on the spot and ask him/her outright if they are willing to go ahead and start a case for you. If he/she prevaricates and doesn't give you a straight answer, you can safely assume they aren't. You won't have been privy to their discussions with your senior line manager - and there will have been discussions. To be honest I cannot see grounds for discrimination since your OSA is not an issue.

Pinky,

My god where do I start

You seem to assume an awful lot. For a start I did not actually accuse you of having said that I am acting out of spite. Secondly, it seems you do not know unions as well as you think. It was my union who prompted me to take action and who want to pursue a case and actually I have been privy to all discussions with my senior line manager, thanks.

Maybe you might like to read my earlier postings on this thread but my OSA is very much an issue. I cannot believe that someone with OSA who apparently is well aware of how it can affect someone, would dismiss it out of hand as having no effect on my work performance. That is like the cigarette companies saying that the nicotine in tobacco is not addictive!

As it is DDA compliant and as sleep deprivation does have a very adverse effect on a person's performance (why do you think it is used by virtually all the security forces in the world as a form of torture and is outlawed in the Geneva Convention), then they do have a statutory duty to take into account my OSA and to consider making any reasonable adjustments to my job in consultation with me.

As this saga has been going on for nearly two years now, it would be fair to assume that I was suffering from OSA without having been diagnosed and treated. If you can provide me with proof that this would have had absolutely no effect whatsoever on my work performance, then I would like to see it.

Asides from which, even leaving aside ther statutory duty, their own procedures say that they must take into account any medical conditions which could have an effect on a person's ability to do their job and discuss reasonable adjustments to their job with them. As they temporarily redeployed me before I had been diagnosed and without taking this into account, they have failed to even follow their own procedures, never mind to carry out their statutory obligations.

I am afraid you really do sound like an apologist for my employer, so if you don't already work for them, perhaps you should consider joining them as you would fit in perfectly!

Steady Tony!

You asked for contributions and Pinky69 is merely exploring possibilities, I don't think she's being judgemental or taking sides. It's difficult to do this thing in writing when you don't hear the inflections in the other persons voice so have no idea of the tone in which remarks are addressed.

Remember we're all trying to help each other here, even if we are short on sleep.

Tony,

I am no lawyer but I think you should certainly get the advice of one (maybe Citizens Advice can help) From reading your posts you definitely have some ground for complaints. I work within the civil service and have had direct experience with how an employer can make reasonable adjustments (I already have Type 1 diabetes which also falls within the DDA). Last year I had 3 months off work due to chronic fatigue (docs misdiagnosed Chronic Fatigue Syndrome in the end and we now know it was OSA). However my employer 1) kept in contact with me and kept me updated on my team and work and never mentioned or considered 'redeploying' me 2) allowed me back in to my post and to take breaks when needed and to leave early if needed. 3) made an early refferal to occupational health 4) drew up a risk assessment and plan to see if/how I could still contribute and remain in post.

I have since moved to another department and again OSA has caused me to have some time off work )incidentally I am still untreated (got a prescription yesterday ) . Again work is being reasonable and another refferal to Occupational Health will be made before any decision is made.
OSA falls under the terms of a disability within the the DDA. If you are capable of doing the job (you must be as they employed you) then the fact you now have a disability means they are required by law to make reasonable adjustments.

Good luck with this, I only wish you had had the managers I have had over the past couple of years

Regards
AndyB

I am not an apologist for yours or any other employer - I was merely trying to give you the benefit of my advice and believe me I do know very well how unions work. If your union have agreed to take the case then they will provide you with legal advice - and shouldn't you be asking why they haven't started the ball rolling? I point out that OSA is not an issue not because I am unaware of its affects on people at work but because at a Tribunal it will be held that your employer did not know you had OSA at the time of the decision to redeploy you so that the fact that you had it played no part in the decision-making. There are two other issues that also need to be taken into account. You say the redeployment is only "temporary" - your employers could argue that the redeployment was never meant to be premanent but was only intended to to last until another position more suited to your skills could be found. They could also argue that their plan was to give some extra training prior to allocating another position given your drop in performance level. There is one other factor that could be argued at a tribunal. They could say that now that they are aware of your health problems a subsequent decision has been made that the redeployment will last until your health problems have been resolved. There is one factor that takes precedence over everything - Health and Safety. They might argue that your perfomance at work, irrespective of the reasons for it, was such that it was putting yourself and others at risk contrary to the Health and Safety at Work Act -and legally that takes precedence over everything, whether or not there was a diagnosis or your health problems were identified at the time.

You asked for advice and I gave you the benefit of my experience. There are so many loopholes in bringing a case against an employer that you need to be aware of the pitfalls. You've said in previous postings that you felt they were a clique who were against you but that won't affect proceedings - all a tribunal is looking for is evidence of the fact that they broke employment law in redeploying you. If you have been privy to discussions with them with your union rep then you have been involved in the decision-making process, whether or not you agreed with the decisions. You may feel they didn't treat you fairly but that doesn't mean they broke the law. Good luck.

Big Ears and Pinky,

I do appreciate the advice, but you have to remember that this has been going on for a while now, and that bullying and harassment can be extremely stressful. It is therefore sometimes difficult not to get emotional about the issue, especially if you know that your employer has failed to investigate your complaints properly.

Today, was a good case in point to illustrate how senior management make decisions. We had a meeting to discuss our bullying and harassment complaint and the senior manager's first comment was " I have read the report and the investigating officers recommendations (incidentally I was not allowed to receive a copy of the witness statements or the investigating officers recommendations) and I agree with them, so the report is not open to negotiations".

When my trade union rep pointed out that it very much was open to discussion and that we had very grave concerns about it and that the whole business could well end up at an employment tribunal, they decided that it might be a good idea to actually listen to what we had to say.

As a result, they are now going away to rethink the way the investigation was handled and they have provisionally postponed a meeting planned for next week. I think you can see that coming in with their minds already made up is hardly allowing either me or my union rep to be involved in the decision making process. It also begs the question of why if they are so sure they are right have they decided to investigate the way the investigation was handled.

I should also point out that I have received no further training in my temporary redeployment and they openly admit that the post I am currently in is not fully utilising my skills, but was just given to me to help out a short term staffing problem they had in one section.

They also knew that I was suffering from an as yet undiagnosed medical condition at the time and that it was likely that it was OSA, so they cannot say that they were not aware of this, although it has been documented that they have accused me of not disclosing all relevant medical problems even though they have copies of all my medical appointments and a note from their own medical advisor advising them of this fact. As for the health and safety issue, they have never raised this as an issue.

I do realise exactly what is involved in going to an employment tribunal as I know people who have been through this process and the pitfalls that can befall you when undertaking this course of action. I am well aware that I may not win if it went to a tribunal, but if that is what it takes to have a chance of clearing my name and restoring my good character, then so be it.

As for my union pursuing with the case and starting the ball rolling, all the professional and legal advice I have received so far is that I should exhaust all possible internal procedures first, so that it can be shown that I have not acted unreasonably in any way and have given them every opportunity to resolve the matter informally.

If I have offended anyone in any way, then I apologise as this was not my intention. All I have tried to do is to put my side of the argument across. I hope that we can all continue to have many more discussions and debates on this forum in a friendly and constructive manner.

Hi Tony

Everytime your employer does not stick to procedures or their own policies, it undermines any defence that they could present to a tribunal. Tribunals tend to be unsympathetic towards employers who do not comply with their own policies.

Every time they do this, it makes your case stronger.

regards

No problems Tony - I hope you get everything resolved to your satisfaction.

Best Wishes

Pinky