Hello my name is ***** ***** I am happy to help you today. Are you the employee in this situation and is a pre-hearing review listed for next week on the disability issue?
yes & yes
Factually you are correct in that if you are deemed disabled the case will proceed and if you are not it will not and the tribunal will not have jurisdiction to hear your complaint and the schedule and documents will be irrelevant.
If you are disabled though the case will proceed to a full hearing which will dispose of the issue of whether discrimination occured so you are not quite right in your statement that if you are disabled they must be liable.
It is for the Tribunal to determine whether your employer actually discriminated against you or not.
There is only ONE critical point of the Case & this is it
IF I have sufficient evidence to convince the Tribunal Judge that
I am disabled (as per the Equality Act)
is it fair to say at that point -I have won the Case
Yes that is right that if you are disabled you have won the pre-hearing review BUT the tribunal will still need to consider if the employer has discriminated against you based on the facts at a full hearing (as I have said above).
"Yes that is right that if you are disabled you have won the pre-hearing review BUT the tribunal will still need to consider if the employer has discriminated against you based on the facts at a full hearing (as I have said above)" - now we get to the nub of the question!!......
Ok is there anything further you would like to know?
IF J agrees I am disabled (under the Equality Act) - do I need to prove Employer discriminated OR as is the case -the Employer took NIL Best Practice steps to help me with my environment/disability. EG do I have to prove or the fact they didnt do anything is enough?
Hi if you are disabled the Tribunal will go on to consider whether you have been discriminated against based on the evidence. If it is your case that the employer did not do anything then the employer will have to demonstrate that they did.
& if they can not (as they did nil)
then it is likely that they will be deemed to have discriminated against you. There is a duty to make reasonable adjustments if they have not considered your disability then it is likely they will be liable on that head at the very least.
This is my approach
2nd Hearing is Mon
We get bogged down with what happened Day to day at work Craig did this project sort of ok etc
my view now is
we side step the day to day activities as they are irrelevant
I get the J to decide if disabled or not
then its down to employer to prove they made adjustments (which they can not prove as didnt) & ALL
day to day info Project this project that -I side setp
In the issue of disability it is for you to prove the impact of the disability on day to day activities. this is never irrelevant. If you cannot demonstrate this then you will not be deemed to be disabled.
ok, lets assume I win the disabled question
sorry typo. Assuming you are disabled I would still suggest you prepare as best as you can for any questions you may be asked.
Lets say J has now decided I am disabled;2nd Hearing is Mon
caveat; "we side step the day to day activities as they are irrelevant" not irrelevant
but I would need to prove disability had advers effect of day to day activity
Hi I do not think it is a good idea not to prepare for potential cross examination. You may get questioned about what happened on a day to day basis if the judge decides its relevant. if the employer attempts to argue it did make adjustments you may be asked about this. I think you are in danger of over simplifying the process.
I say this because
I have an email from HR stating
they forgot to send my Medical record to Occupational Health!
well I am a lawyer and I have been in plenty of tribunals where disabled employees have been cross examined in this way. It is a normal part of the legal process.
so by default they could not make adjustments!
That's your opinion it is for the judge to decide , based on the evidence, whether adjustments were made. They are likely to cross examine you as to what happened on a day to day basis to determine this.
I am not trying to be unduly difficult it is just not going to be as straightforward as you assume I fear.
Hello did you have a further question?
did u seee above pls
did u receive my q pls
No I can see last q but no question underneath.
taking onboard all u have mentioned; if line mgr states
didnt know Craig disabled is that enough or the fact Employer knew (Med Form) does that overide
If the med form states then that is enough for knowledge provided you are deemed to be disabled.
cool. finished most helpful -thank u
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