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discrimination tribunal
Posted by eddie28
3rd Aug 2015

THE CLAIM ‘DISCRIMINATION ARISING FROM A DISABILITY’.

I’d had an employment tribunal last year (2014) following a dismissal for gross misconduct after bringing a claim of ‘discrimination arising from a disability’ against my employer, an open access publisher and a global online publisher based in the Holland and Europe.

I’d lost the tribunal due to lack of evidence when the judge ruled in favour of my employer. I’d suffered from depression, and had allegedly made my employer aware of this and my medical history, but they’d refuted this claim that I’d had a disability or mental impairment under the Equality Act 2010.


I’m not suggesting that my symptoms of depression were the cause of my decision to send inappropriate emails that used as the basis to justify my dismissal, these were seen as as ‘inappropriate‘, ‘offensive’ and ‘sexually suggestive‘ by the HR team under the company code of conduct policy, which I had not read until the disciplinary. Neither am I suggesting that being depressed, or having a disability or mental impairment, in anyway excuses or means I am exempt of responsibility for any wrongdoing, distress or damage caused as a result of these actions.

At the time, most people I’d spoken to would say things like ‘it is really worth it?’, or ‘you should just forget it, if you lose it will cost you even more’. But then I just couldn’t let it go, and after I was awarded an exemption for the hearing fees because I was unemployed and couldn’t afford the costs, I’d felt compelled to expose information about the events and to achieve a feeling of closure, which I never will. During the exchange of evidence, it was disturbing to read my colleagues’ comments about my conduct and performance, and how they’d tried to support me, which I’d thought were exaggerated or untrue.

After the hearing, the only consolation was that I’d managed to will myself to attend and survived. I’d done this with little advice or support from anyone, as I had few friends and my family did not live in London, and since my partner had left the country after our separation and taken our son to live with her family abroad, attending the hearing and being responsible for the claim gave me a sense of meaning. It was a very complicated process which lasted over a year and pretty much became an obsession for me.

I would like to show my account of dealing with a complicated legal process, and also the problems faced by employers and employees about how mental health issues and disabilities are treated under the law and by company policies, as this could help others and hopefully make a difference in future. It was simply a difficult period in my life, and after the dismissal moving on hasn’t been the easiest thing for me.

Now when I attend job interviews, when I’m asked why I left, I can either choose to lie about what happened, or try to explain it, both choices have there different ramifications. I’m still bitter and angry about the dismissal and losing the tribunal as it’s taken me time to accept the dramatic changes in my life, but this is not meant to lay blame or to pick at old wounds.

THE DISABILITY

I had attempted to make my employers aware that I’d suffered from depression within the twelve months before the incidents of misconduct happened. Unfortunately, I’d had several disagreements with my line manager about my attitude, and whom with the support of the HR team had later had been responsible for escalating and implementing the disciplinary procedures, but which happened after these disagreements occurred and which I’d felt was the real reason for the dismissal.

I’d suffered from depression before these incidents of misconduct happened, and had felt mislead and pressured by my line manager and the HR team into signing a Capability Policy agreement. A short while later I was dismissed without an investigation or disciplinary procedure for gross misconduct after more disagreements about these procedures in which they’d denied I had depression or a disability.

My claim was a ‘discrimination arising from a disability’, this being due anxiety and symptoms of stress which sometimes effects my concentration, sleep and causes me further stress and low mood, but which generally does not have a serious impact on my day to day activities. I couldn’t make a claim for unfair dismissal because I’d only worked there for eighteen months.

Also during this, while we’d learned about the pregnancy, I’d learned that I’d inherited a genetic premutation called Fraxa, which is associated with Fragile X syndrome and also linked to symptoms of depression and anxiety, and which I’d became convinced was related to my own past experiences.

THE CAPABILITY POLICY

I’d informed my line manager and the HR team that I wanted to submit Flexible Working hours request to work from home for a few days to help my anxiety. In response, the HR team put in a request for me to see an Occupational Health therapist, which took several weeks. At this time, my line manager had insisted that I complete some objectives on top of the work I was already doing in order to satisfy our yearly appraisals.

We’d had several disagreements about some sarcastic comments and incidents of lateness, and she’d decided to write a ‘Performance Improvement Plan’, a list of tasks and objectives for me to achieve which she would use to monitor my performance, but which I’d felt was punitive and unnecessary since it essentially described my day to day activities and the responsibilities of my role as a Production Editor. I’d felt this document was mainly an incentive to placate me, but which was detrimental since I’d been experiencing severe stress at the time partly due to events outside of work and as a result of my depression.

Apart from the emails which contained material that was identified as being either offensive or ‘sexually suggestive‘, I was never presented with any examples or evidence to support the implementation of an ‘Performance Improvement Plan’ agreement, which I’d later learned was absolutely crucial under the terms of the Capability Policy procedure.

With this document I’d felt mislead into believing it was a necessary, practical method for monitoring my performance and achieving the compulsory objectives, and was only conceived by my line manager in response to my request to submit a Flexible Working application. This had been in order so that I might work from home and be able to better manage my stress while also assisting my partner with our new born.

THE JUDGEMENT

After the hearing the judge had made a decision based on the evidence and statements from the HR team and my line manager that revealed I had failed to communicate my disability to them at the time, but appeared contrary to my claim that they had also been responsible for implementing these procedures. Consequently, the judge could not examine further evidence because no discrimination could have occurred since it wasn’t possible for my colleagues to have known that I’d had a disability.

This seemed bias as it appeared to ignore the fact that my employer had complete control of the evidence and was dictating which documents should be used, and where it was only during the hearing that the solicitors finally appeared to admit that I had a disability, not counting their willingness to attend the hearing without the medical records which I’d requested.

Months later, I’d tried to appeal the judgement, and explained that if I’d been allowed access as I had requested that this could have helped my claim, but also because I was representing myself I hadn’t realised and was unprepared to challenge the judge’s suggestion about examining evidence concerning the respondent’s knowledge. Furthermore, I’d questioned the logic of why the tribunal decided to accept my line manager’s and HR team’s statements as the truth, since I’d made clear that they were responsible for the disciplinary procedures which resulted in the dismissal. Eventually I’d withdrawn my appeal when I’d learned that it was unlikely to be reversed and as the judge was unable to review the evidence since I’d failed to request this as a separate procedure.

INCIDENTS OF MISCONDUCT AND THE DISCIPLINARY PROCEDURES

On the weekend before my son was born, my line manager and I had a disagreement about my time-keeping and she’d demanded I work overtime. In a confirmation email I’d sent her to record my departure time, I’d copied a children’s cartoon of Batman holding a woman and showing her moaning, somewhat lasciviously, in a speech bubble. This had been related to a joke I’d had with my line manager, but which the HR team had decided was ‘banter’ and did not justify this inappropriate email, which was against company policy.

I’d returned from work after the birth and immediately underwent a disciplinary procedure in which I’d described the cartoon as trivial and a joke, but that I’d understood how it could be misinterpreted as lewd or offensive, and which the HR team took as my admission that this had been my reason for sending it. Ironically, the HR team were also responsible for implementing the PIP agreement, which I’d expressed concerns about as it appeared to be a disciplinary procedure, and was worried would hinder my assessment with the OH therapist and my application to work from home.

The HR team and my line manager assured me that the PIP was not a disciplinary procedure, or related to the incident of misconduct which was being dealt with separately. So I’d agreed to sign the PIP document, although I’d already explained my concerns that it seemed like a second disciplinary procedure and appeared to both overlap with the actual disciplinary procedure regarding my conduct and to misrepresent my performance since there was no evidence except where my line manager had felt annoyed by criticisms I’d made and incidents of lateness.

I should make clear that from evidence that was brought to the hearing to prove that there was a legitimate issue to justify the Performance Improvement Plan, in my witness statement and from emails about the PIP at that time I had critised as being ‘vague’ and ‘ambiguous’. The fact is that on a daily I was responding to and managing high volumes of requests (email and telephone) from authors, vendors, customer service staff and editors, some of whom were operating on 24 hour shifts in different countries, and that often it might take several days to respond or resolve an issue if there was a backlog. Complaints, general queries about content and production matters, and updates on delays from authors and editors were received by the hundreds each week.

My line manager has alleged that I had ‘lost trust’ with my colleagues from various department due to poor response, and which my line manager would assist with, ‘do the work for me’ as it described, after being copied into ‘all’ my email communications, but which I’d strongly disputed. Then when I’d agreed to sign the PIP, and had requested specific evidence and examples to validate these claims, this was disregarded as only referring to ‘general issues’ which did not require scrutiny.

Then, a year later during the exchange of evidence for the hearing, following repeated requests for evidence to justify the objectives in the PIP, I was sent batches of files containing examples of production errors and issues I was allegedly responsible for. These I found to be untrue and misleading because as a Production Editor it was often the case I was managing multiple issues and complaints from authors and editors on a daily basis, and from the evidence provided, none of which had ever discussed prior to the PIP agreement with the HR team, had been cherry-picked at random from the thousands of email communications stored in my company email account.

I had hoped that she and the HR team would’ve shown common sense after I’d spoken and provided information about the Frax Premutation and my depression, or because I’d just had a baby, and had hoped they would consider withdrawing the allegation of misconduct and behaving inappropriately towards my line manager as nothing more than a misunderstanding

Worryingly, my colleagues had decided that I should be disciplined despite my agreement to sign the PIP, but also before I’d submitted my application to work from home or attend the assessment with the OH therapist to determine whether I was depressed and how this effected my work. It was not explained to me that the purpose of this assessment was to determine if I had disability, and as I did not have a diagnosis from a GP or considered myself disabled under the definition of the Equality Act 2010, I was not able to consult a GP or legal adviser and explain the situation before any of these events occurred.

After Christmas, I’d returned to work and was told that my assessment with the OH therapist had determined that I was not disabled, but only experiencing borderline depression/anxiety which was not work related, and stemmed from pressures outside of work; crucially, however, this ‘evaluation’ had been a thirty minute conversation in which I’d claimed that the therapist had told me he was not interested in my past history, only interested in my normal working activities and questioned my use of the term ‘depression’ which he’d felt was a stigma. Furthermore, he’d made this assessment without requesting or reviewing my medical history and based it entirely on information provided by the HR team.

During a followup meeting with my line manager and the HR team, in which I’d attempted to make clear my complaint about the OH therapist’s assessment, I was simply told that this wasn’t important, that no reasonable adjustments would be necessary as I wasn’t depressed and therefore for this reason would not be authorising my Flexible Working application, but that I could appeal this decision at a later time.

They’d also decided that the ‘core reason’ had been to work from home to assist my partner with the baby, and that because I hadn’t completed all of the objectives in the PIP agreement would also be extending the length of the PIP agreement. Although to them my performance had ‘improved’, however, they’d still felt that it needed to be monitored. I was not shown any examples or feedback as to exactly how I had achieved or failed these objectives.

This seemed ironic since I’d spent the last three months discussing my condition and desire to submit an application, and had believed that this was whole point of the PIP agreement, to satisfy my line manager’s request to complete these objectives. The main issue appeared to be an apparent issue of conduct rather than performance or any completion of tasks, and this seemed to overlap with the separate disciplinary issue for misconduct, but which I’d been informed that technically had nothing to do with the PIP.

This suggested to me that the objectives in the PIP agreement and their decision to reject my application had been arbitrary, that this had an influence on both their handling of the OH therapist’s report and our discussion of my condition, and that these disciplinary procedures were mostly related to previous disagreements we’d had.

The day before my paternity leave, where I’d been off work for two weeks, I’d sent an email with instructions to my colleagues and my line manager about issues and tasks they’d needed to monitor for my journals. I was extremely exhausted and depressed at that time, and for reasons I’m still uncertain about, I’d copied in the URL http://www.f***thiss***.com at the bottom of the email as a crude and childish joke. I’d felt angry about the OH therapist’s report, their refusal of my flexible working application and the apparent lack of legitimacy with the PIP, all of which seemed to have been influenced by disagreements and personal difference without genuine cause or justification.

DISMISSAL

Three weeks later, after my paternity leave, I’d had a meeting with the Head of the Department and HR team in an appeal to their decision and had complained about the implementation of the PIP agreement, and where in response it was suggested that I should submit a grievance. A week later I was called into the HR office for a meeting with the another Head of Department and HR Manager and told that my employment was to be terminated since my behaviour and performance had become unacceptable, and also after my line manager had said she was afraid of me and could no longer work with me.

This was related to the email containing the URL which they’d felt violated the first warning after the email with the Batman cartoon. According to them, and the explanation I’d received in the dismissal letter, I had failed to complete the objectives in the PIP, but which I’d later learned was actually a Capability Policy. At this point, I had never heard of a Capability Policy or even knew what it was, since this was not provided to me before I’d signed the agreement, and which I wouldn’t have agreed to had I been informed about it.

Eight months later, we’d had the hearing following months of letters to the solicitors and complaints to the ET about the respondent’s refusal to disclose documents concerning the PIP, and denials about their knowledge of the disability based on random comments I’d made. I’d tried to explain that before the dismissal I’d never considered myself disabled or even read the Equality Act 2010, but also because neither the OH Therapist nor the HR team had asked me this until months after the dismissal when I’d sent my claim.

Summary
I understand the some of the details I’ve described are entirely my own opinion, that this is is unfair and it shouldn’t reflect badly on the decisions or conduct of those I’ve worked for or the representatives of the tribunal. It’s just as likely that even if I had not had a baby with my partner, or if none of the events involving the Capability Policy, Occupational Health report or the flexible working application had happened, I would have still been dismissed, undergone legal proceedings and then lost my claim for discrimination.

However, it’s also just as likely that none of the disagreements or incidents of misconduct would have happened either, and I would not have been disciplined or dismissed. Had the former been the case, and I’d been dismissed, I would have still (if it was possible) brought forward a claim for discrimination, and would have brought a claim for unfair dismissal.

I had tried to reconcile and apologise for any misgivings or disagreements over my attitude and conduct several times with my line manager and colleagues. I’m aware that each of us in the team, including the line managers and heads of department, were juggling a great number of responsibilities and commitments (both professionally and privately), and that there had been numerous changes to both the overall structure of the department, and the systems and processes we as a team relied upon to manage our work, achieve our goals, and perform well in our roles.

Therefore, it has always been difficult for me to criticise or speak disparaging about those I’d worked with, but often when personal differences and disagreements arose, as they do in all situations and workplaces, there is an inevitable conflict of interest and clash of egos. Despite any rancor or guilt, it was a positive experience, and I am grateful for the opportunity and wish the best for those I’d worked with.

https://edlear30.wordpress.com/2015/07/07/the-judgement-the-equality-act-2008-and-the-defamation-act-2013/

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