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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6390
Experience:  15 years experience of advising on employment law matters
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this is very complicated. recently I applied for an internal

Customer Question

this is very complicated. recently I applied for an internal vacancy at work and was told from the transport manager that 'I have a duty of care and It isn't correct to put you in this job' (all informal and verbal) considering that in January I was diagnosed as clinically depressed and had a few months signed off from work, I returned in april and have had no time off related to my depression. the applied for job was a multi drop delivery driver a position that I did for work untill the start of summer this year. regardless off my depression. but when I apply for the job full time I receive questions such as 'what about your medication' to whit i told them i was no longer taking since april. i phoned equality Scotland, and they told me to put in grievance procedures on discrimination arising from disability which i did. upon this meeting i received a letter with the following three reasons for ending the process
1. you went on three weeks holiday and during the time you were off the role had to be filled by more experienced people (i don't know how my doing the job itself does not constitute as more experience)
2. talking to transport manager i see no evidence of discrimination against you or your disability. it is clear there was a showing of a duty of care to you as an employee and taking refrence from requested time off work there is no conformation that the comments you said were made in the context you refer to. (i sense extensional pruning at work here and is blatant enthymeme fallacy)
3. your request for extended leave was granted to help sort yourself out as quoted by you. transport manager supported this request ( i don't see what this has to do with any of my grievance for discrimination arising from disability. at no point in my letter did i mention proplems with reasonable adjustments)
i feel these are straw man arguments against my grievance which is 'denying a job opportunity under the circumstance of depressive illness with no communication to validate this justification it is therefore objective justification'
i am fully aware that it is my word against his in this situation and really would like information on where to go from here either A, accept the descion or B, take the grievance to the next level
any help is welcomed
Submitted: 3 years ago.
Category: Employment Law
Expert:  taratill replied 3 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. On the face of what you say the obvious presumption is that it is your disability that is the reason you were not sucessful in obtaining the job and this amounts to direct discrimination contrary to the Equality Act 2010.

taratill :

If your employer has an appeal procedure against the grievance you should appeal.

taratill :

If this does not produce results you can issue a claim whilst still employed.

taratill :

You can first enter the ACAS early claim conciliation process. You will find details of this at http://www.acas.org.uk/earlyconciliation

taratill :

If this is not successful you can raise a claim.

taratill :

If you have any further questions about this please do ask.

Customer:

hi jenny, my first concern is that this was all verbal communication and as stated in my letter that i have mistaken context, its a simple case of my word against his, as i have no witness or written conformation of these reasons

taratill :

This is often the case in employment law cases. Where a presumption of discrimination is raised the burden is on the employer to prove that the decision was not for a discriminatory reason.

Customer:

i see, also i am concerned with the attention to reasonable adjustment and the 'duty of care' that they are purporting, because this is extremely complex situation in which people already in the role i apply for also had spouts of depression but yet this 'duty of care' seems absent from them but is crystal clear with me. also the reliance on the extended time off as further evidence for duty of care and his thought process behind the reason. also i am to now have review meetings to discuss my well being, a performance development plan, referral to colleague health/occupational health. i feel this is to try to cover themselves at best and at worse try to annex me.

taratill :

It is my view that they cannot rely on that in the absence of seeking medical advise that this position would cause you harm, sounds like an excuse to me!

taratill :

I would therefore suggest you do appeal and go down the process. Otherwise you are letting them get away with it!

taratill :

You cannot be dismissed for pursuing this either as this would be victimisation.

taratill :

If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer:

do i need to accept the corrective action?

taratill :

What corrective action is that?

Customer:

regular review meetings to discuss my well-being

Customer:

and occupational health

taratill :

but they have not given you the job?

Customer:

they have said in following this grievance

taratill :

It is a good idea to agree to their supportive measures. It does not resolve the grievance though. I would suggest you proceed as I have suggested.

taratill and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

hello again, I have an update regarding this issue, i have received my letter from stage 3 of this process in which I have been told


 


'I cannot see any evidence of discrimination against you or your disability, there is much evidence to support that the manager has acted on your behalf on a number of occasions but we accept he has not followed procedure throughout.'


 


my concern is that how could anyone act on someone's behalf by being discriminatory? also can I ask to see this evidence?


 


thanks in advance