Discrimination questions - health
Our discrimination expert, Richard Leong, answers readers' questions about discrimination and health issues. Read on to find out what problems other readers have experienced and why they don't have to put up with it.
I'm at my nerves end
Dear Richard
I had a fall from a stool at work two years ago. I have now had to have surgery. I am taking my employer to court, but they have been trying to discredit me, and now Ii have to face a disciplinary hearing to see if my team leader has a case against me. I now suffer from stress and I am on a mild form of tranquiliser and I am still in pain with the injury. I have not had any physio after my operation, but it was mentioned that a knee replacement can be done on people as young as me. Now I have been told I could lose my job, even though I am taking my employer to court. Can they do this? I can't sleep, and I am now just at my nerves end.
Richard says:
I am sorry about your problems at work. I understand that you had an accident at work and you are now suing your employer for personal injury through the courts. You believe that your employer is threatening you with dismissal and has subjected you to a complaint for taking this court action. You are now suffering from work related stress.
Personal injury is a form of negligence that your employer might be liable for. The Health and Safety regulations lay down strict duties on employers in respect of plant, machinery and fellow workers. There should be a health and safety representative you can consult. The Health and Safety Executive can give you more information.
You have an absolute legal right to sue your employer for an accident at work that you believe might have arisen from poor health and safety. Moreover, you might have another personal injury claim, if you believe that your stress is work related and caused by your employer's victimisation of you.
I advise you to seek legal advice from a personal injury lawyer or a trades union.
You could also consider raising a grievance for the personal injury you suffered and the victimisation. You can read more about raising a grievance in our guide Dealing with discrimination at work - How to use the grievance procedure. If you are dismissed, you can file a claim for unfair dismissal, providing you lodge the claim within three months of the date of dismissal.
I feel I’m being punished
Dear Richard
I have bone/breast/liver cancer. I have worked for the same company for almost 10 years. I have had three different lots of chemo and worked reduced hours through the last two, and until now work has been very supportive.
However during this last treatment, from which I am now classed as in remission, my manager has changed. I have been informed that my performance for the last six months will be classed as a level 2 (under-performing) even though I was on treatment, working very reduced hours. If had I been signed off for the whole period I would be a level 3 (standard performance) which is what I had expected. So by trying to work through treatment rather than being signed off, when they may have been able to put me on long term disability, I feel I am being punished. Is this grounds for discrimination?
Richard says:
I really admire your bravery and determination in the face of adversity in working through your illness. And it seems that things were fine until your manager changed.
My understanding is that you have got an unexpectedly poor performance appraisal classed as level 2, whilst you were working and undergoing treatment. It appears to me that your medical condition is making it difficult for you to perform at work.
I would like to reassure you that your medical condition amounts to a disability covered by the Disability Discrimination Act 1995. I believe that you may have two possible disability discrimination claims against your employer.
Firstly, your employer failed to make the ‘reasonable adjustments’ he is required to by law, by assessing your performance and failing to take into account your disability. Reasonable adjustments are measures to let you cope at work in spite of your medical condition, such as classing your performance as a level 3, instead of as a level 2, allowing you to work flexibly, changing your duties and so on.
Secondly, you may possibly have been discriminated against for a reason related to your disability. Because your work performance is affected by your disability, your employer should not use it as a reason to give you a poor performance appraisal. This is unlawful.
You may believe that you have only two options: either trying to work whilst undergoing treatment and being penalised, or being signed off and consequently not penalised. I want to make clear that there is a third option. You are entitled by law to work whilst undergoing treatment with reasonable adjustments made by your employer, and without being penalised for your allegedly poor performance due to your illness or treatment.
To sort out the situation you are not happy with, you can lodge a formal grievance to your employer to complain about it (see the Advicenow guide 'Dealing with discrimination at work – how to use the grievance procedure' in the menu on the right hand side). If you’re not happy with the result and you would like to consider bringing a tribunal clam I will be happy to give you further legal advice before issuing proceedings. You can read more about taking a claim to a tribunal in the links on the right hand side.
Must older people ‘just get on with it’?
Dear Richard
I am an advocate and have just received a referral for a man of 78 with a prosthesis (false leg). This is ill-fitting and he has endured discomfort for two years. When asked why he did not go back to his GP to complain he simply said it is 'because I am old and they do not think it is worth doing a proper fitting one so I must just get on with it'. The person who referred him quite rightly said that he is a person and every right to have a proper fitting prosthesis. If we come up against great problems with this can you advise what we can say in his defence. Surely this is discrimination?
Richard says:
This could be discrimination on the grounds of age or disability. If this gentleman has been told that it’s not worth getting him a properly fitting prosthesis because of his age; that clearly sounds like age discrimination. Unfortunately, the age discrimination regulations do not cover health at the moment.
But because hospitals/GPs provide a public service, they are required by law to respect people’s human rights. One human right is the right to private life. You could argue that not providing this gentleman with a properly fitting prosthesis goes against his right to a private life because the pain it causes him stops him from being active. And if the only reason the GP is not respecting this gentleman’s right to private life is because of his age, he is discriminating against this gentleman in the use of his human rights. But be aware that the right to private life is a qualified human right. This means that if a public service provider can show that there is an acceptable reason why it can’t respect someone’s right to private life in a particular situation, it doesn’t have to.
In addition, this gentleman is disabled. By not providing him with a properly fitting prosthesis, the GP/hospital are probably discriminating against him for a reason relating to his disability. Again, the law allows the GP/hospital to try and justify this decision but it will only be able to do so in very narrowly defined circumstances.
This gentleman should certainly think about making a complaint to the GP practice or the NHS Trust, using their internal complaints procedure. He should point out that he feels that he is being discriminated against for a reason relating to his disability and that his human rights are being ignored. It’s also worth getting in touch with an organisation that campaigns for the elderly like Age Concern or Help the Aged who might be able to give you more help and support. If this doesn’t get him anywhere, he can get in touch with his local Independent Complaints Advocacy Service or make a complaint to the General Medical Council (the governing body for doctors). See the link on the right hand side for more information on making a complaint.
As a last resort, he could get further advice from a discrimination specialist at his local advice agency to find out whether it would be worth suing his GP or the NHS Trust in the county courts. There is a six-month time limit for making a claim. The Commission for Equalities and Human Rights may provide legal representation.
Where do I stand after fall?
Dear Richard
A year ago I was involved in an accident whilst at work through no fault of my own. As I do not like to take time off work the company doctor advised my employer that I would only be allowed to work restricted hours and very light duties due to my shoulder being badly damaged. The recovery period would be twelve to eighteen months but would never be 100 per cent - at best 80 per cent.
You can read more readers' problems by using the menu on the right hand side.
I find this most unfair as the company has a duty of care towards me and have been paying me a full salary for a year. I am in this predicament due to persons unknown causing me to have a very severe fall. Where do I stand? Is this a case for disability discrimination?
Richard says:
I am sorry to hear about your accident at work. If it was caused by your employer's negligence, you might be able to claim compensation from your employer for the reduction in your wages and any other money you have lost or had to pay out as a result of the accident. You will need to get advice on this from a personal injury lawyer. You can search for a lawyer on the Association of Personal Injury Lawyers website. The time limit for bringing a personal injury claim is three years from the date of the accident.
Because your accident has caused you to have a long-term physical impairment (a problem with your shoulder) you are almost certainly protected by disability discrimination laws. This means your employer has a duty to get medical advice about your condition and make reasonable adjustments to help you work effectively. By getting medical advice from the company doctor and, as a result of that advice, reducing your hours and duties, your employer has probably fulfilled these obligations. But if you disagree with the company doctor's recommendations, you can get your own medical report from your own doctor.
Still, there are a number of things you might be able to do about your reduced pay. If you are a member of a trade union, get some advice from your rep on these:
- Look at your employment contract to check your sick pay entitlements.
- Check any information about staff entitlements to see whether you are covered by any insurance purchased by your employer.
- Ask your HR department if the reduction in salary can be phased in gradually over a number of months to help you get used to being on less pay. If you decide to go for this option, you could also find out whether you can get any incapacity benefit to supplement your income and look into any payment protection insurance you might have (for example, for your mortgage) if you are struggling with your regular outgoings.
- Find out if you are entitled to medical retirement, something that applies to employees who are permanently unfit to work.
Good luck.
Too old for treatment?
Dear Richard
I sometimes go and visit an elderly gentleman whose wife I used to look after before she died. He’s in his 80s but manages really well. Recently he started to suffer from claustrophobia. He went to the GP about it who told him he was too old to be treated. Is this right? I can’t see why he shouldn’t be treated like anyone else.
Richard says:
It seems that this elderly gentleman has been refused medical treatment by his doctor because he is too old. Firstly, we need to know if this refusal was for medical reasons or just because of his age. Sometimes there are good medical grounds for refusing treatment but the doctor should have explained this to him.
If he was refused treatment just because of his age, then this is discrimination. Although there is legislation that outlaws discrimination against older people, unfortunately it only covers employment situations and not medical services. However, organisations like Age Concern are lobbying the Government for a change in the law, so that goods and services are covered too.
The doctor might have considered making a referral to other organisations that could help him (for example counselling). If this doctor is discriminating against this elderly gentleman, without good medical reasons, then you might consider making a complaint to the surgery. If this does not produce results, then make a complaint to the General Medical Council (the governing body for doctors). There are also campaigning organisations for the elderly that could help, like, Age Concern or Help the Aged.
