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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46798
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My son has a disability and works 's communications

Customer Question

My son has a disability and works for Kelly's communications although all meetings, work is handled by them he is paid by labourforce so technically self employed. A cover manager who had not been made aware of his difficulties threatened him the week before last and as soon as my son made a complaint he has had 1 verbal, a written and today a final written warning. Before he became ill he had been a team leader for them and said he knew this would happen once he made the complaint as this is what they do to get people out- any advice?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long has he worked there for?
Customer: replied 1 year ago.
he started work in December 2013, then moved to PAYE August 2014 but lefy in May 2015 due to mental helath issues not helped by illegal practises at work that at the moment he wont let me bring up with work. Once he was feeling a little better he joined back as an engineer in November 2015- he made them aware of his diagnosis and since then his psychiatrist has written to them explaining his difficulties.
Expert:  Ben Jones replied 1 year ago.
Why was he threatened?
Customer: replied 1 year ago.
He was having a low week and had explained this to his immediate line manager who had said he could go home- the next in command was on holiday so the cover manager rang him and told him to go back to work- he explained he was not in a good place and work had letters about it- the manager said he couldn't care less about his illness and it didn't wash with him(this was on a Friday) and he wanted to see him in the office on the Monday morning where 'his feet wouldn't touch the ground'
Expert:  Ben Jones replied 1 year ago.
What is the nature of his disability and does it qualify as a disability under the Equality Act?
Customer: replied 1 year ago.
He has aspergers which qualifies under the DDA and work have had a letter from his psychiatrist confirming this
Expert:  Ben Jones replied 1 year ago.
Thank you. Just be wary of referring to the DDA as that is no longer good law, it was replaced by the Equality Act, although the protection remains largely unchanged. So assuming he has a qualifying condition, his employer (and its employees) should not treat him detrimentally as a result of his disability. In addition, they have a duty to make reasonable adjustments if he is going to be placed at a disadvantage because of the disability. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:making adjustments to work premises;allocating some of the employee’s duties to others;transferring the employee to fill an existing suitable vacancy;altering the employee’s hours of work;allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;acquiring or modifying specialist equipment;providing supervision or other support. So as you can see there are some examples which could have easily been applied in the circumstances, rather than him having to face the threats he was subject to. Whilst he can make a complaint internally to bring this to the employer’s attention and let them deal with it, if the response is unsatisfactory and the issues continue, then he may have to look at making a claim for disability discrimination. This is your basic legal position. I have more detailed advice for you in terms of the process to take this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46798
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
ok thank you- the other issue was he sent the complaint and asked if he could meet with another manager and got an email saying yes come in and meet with someone else- he had no idea he would be disciplined and it was him sat infront of 2 managers
Expert:  Ben Jones replied 1 year ago.
So was he formally disciplined and issued with a warning or similar?
Customer: replied 1 year ago.
he was given a verbal warning for not doing what a manger asked followed by a written warning in the same meeting for completing a job outside of a customers house- they are told to do this to make sure jobs are completed if a customer is not in by managers but they shouldn't so they know he can't prove he was told this although his disability means he will do as told - when these are raised managers normally sweep them under the carpet as it is them encouraging engineers to do this but my son says they will want him out as he has made a complaint which he has seen happy before when he was a team leader- today he was aksed to go in for a meeting again him and 2 managers and was given a final written warning
Customer: replied 1 year ago.
the verbal for not doing what the manager asked was the conversation leading to the threat- he was asked to go back to work but it was the week my grandson, his nephew who unfortunately died was born and this had caused his low mood which he had explained to his team leader the day before who was very understanding of this
Expert:  Ben Jones replied 1 year ago.
If he is genuinely self employed then he is not subject to the usual rules on disciplinary proceedings as provided by ACAS, so the employer is not required to follow a fair disciplinary procedure. However, if the warnings were issued because of his disability then that could form part of the general discriminatory behaviour by them. In terms of having to take this further to tribunal, he has 3 months from the date of the discriminatory act (or the last in a series of discriminatory acts) to make the claim. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
Customer: replied 1 year ago.
it is difficult as he has a log in to Kelly's HR system, all leave including holiday leave has to be authorised by them and any meetings including the disciplinary meetings he had no idea he was going to were led and held by Kelly's
Expert:  Ben Jones replied 1 year ago.
ok but procedurally he cannot challenge this as the fairness of disciplinary proceedings only applies to employees, so the fact he can challenge is not that he was not given warnings etc but what he was actually disciplined for and if it was linked to his disability
Customer: replied 1 year ago.
OK thank you- so would we complete the ACAS form for this and should we take a solicitor?
Could he challenge his self employed status?
Expert:  Ben Jones replied 1 year ago.
The self employed status depends on how he is treated, you can do a test here: https://www.gov.uk/guidance/employment-status-indicator You do not need a solicitor to go through ACAS, best not to have one as you do not really need one, ACAS help you along the way
Customer: replied 1 year ago.
ok thank you for your help
Expert:  Ben Jones replied 1 year ago.
You are welcome, all the best
Customer: replied 1 year ago.
I have just completed the test and it has come out he is an employee
Expert:  Ben Jones replied 1 year ago.
ok, that is just an indication, it is not necessarily indicative but can be used in an argument that he is an employee - in reality only a court can determine his status

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