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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46153
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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. 2nd question -pls take this hypothetical question as NIL

Resolved Question:

Hi. 2nd question -pls take this hypothetical question as NIL to do with my Case. its just a question pls
Let's take a hypothetical Disability Case for Bob; Bob told his employer Day 1 in writing on his Contract of Employment he had a bad back. He didn't complain but his employer took no "reasonable steps" at all. So;
a) can Bob go to an employment Tribunal & he has a Case pure & simple
OR
b) does the Employer have to prove they took reasonable steps
OR
c) does Bob have to prove back problems caused him problems at work
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Did Bob explain how serious the problem was or how it may affect him doing his job?

Customer:

Hi

Customer:

I am bouncing between yourself yesterday &

Customer:

taratill says:

Customer:

I would prefer if taratill thus handles this 2nd q

Customer:

is that possible

Customer:

as taratill did q1 this am#

Ben Jones :

she is not online at present but I have access to it so can see what was discussed

Customer:

ok

Customer:

so if you handle q2 now -I wont get another contact from taratill asking about q2 correct??

Ben Jones :

yes correct I am dealing with this specific query now

Customer:

great-thank u

Ben Jones :

So could you please answer my initial query above before I can discuss this

Customer:

Did Bob explain how serious the problem was or how it may affect him doing his job? no. Bob said nil during his empooyment or on day1, he put he had a back problem in his contract of employemnet/medical questinaire - so bearing this in mind is it a,b or c pls

Customer:

r u checking?

Ben Jones :

yes

Customer:

whilst u r checking- this is a foc question as part of my q1 with your colleague this am

Ben Jones :

the law

Ben Jones :

Under paragraph 20 of Schedule 8 to the Equality Act 2010 an employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know that a person had a disability. If the employee had mentioned their condition in their employment contract or in a medical question arise, which the employer would have been reasonably expected to be aware of, then it is most likely they would have had knowledge of the disability and the duty to make reasonable adjustments would have arisen.

So if the employer had knowledge of the disability but it failed to assess the need of and make any reasonable adjustments, the affected employee could make a claim for disability discrimination. This claim must be submitted within 3 months of the employer’s failure to make the reasonable adjustments, this would be the date they decided that no reasonable adjustments are necessary.

If a claim is made it would initially be for the employee to show that they had a disability and were in a position that required reasonable adjustments. It would then be for the employer to try and defend that and show that either they had no knowledge of the disability (unlikely here) or that the required adjustments were not reasonable.

So it is really a combination of the options you mentioned, it is not as simple as just picking a, b or c

Customer:

good

Customer:

now back to relating it to my case...

Customer:

Pls for now forget about I have a Case which is Disability with Dscrimination. Lets again hypothetically say I hadnt broiught the Discrim into play

Customer:

My scenario is excatly what u described (in my hypothetical example) in that;

Customer:

I put Day1 employment medical contcat -my medical conditions & medicines.

Customer:

Lets hypohetically say I didnt make a complaint during my employ

Customer:

& the Employer took no reasonable steps

Customer:

My understanding frim what u put is that on THAT basis;

Customer:

The Employer would be at fault as they were made aware (day1) & took no reasonable steps

Customer:

correct?

Ben Jones :

Yes. Employers will not avoid the duty to make reasonable adjustments where they did not know, but should reasonably have known, about an individual's disability and substantial disadvantage. Therefore, they should take reasonable steps, and have systems in place, to find out the relevant information. So even if you have not complained but there were hints that you may have a disability requiring adjustments then the employer can still be guilty of not implementing them or at least trying to find out more and if they are needed

Customer:

were hints-no hints, just decalration Day1 contract

Ben Jones :

yes that is sufficient - there was knowledge by the employer, that is what I mean by hints, it does not need t be anything further

Customer:

excellent

Customer:

now the nub of my question;

Customer:

sorry forgot a question first

Customer:

in the above example

Customer:

would the onus thus move from me to the Employer to prove that they did take reasonable steps?

Customer:

& if they couldnt -they lose

Ben Jones :

initially it is for you to prove you had a disability and needed reasonable adjustments and also provide examples of what reasonable adjustments could have been made in your situation, then the burden shifts to the employer and if they can show that the proposed adjustments were not reasonable they can potentially defend the claim, but if not they could be found guilty

Customer:

fine

Customer:

nub of question;

Customer:

My case started off as both Disability combined with Discrim. That has an injerent problem as it means I have to prove Discrim & that is very lengthy & hard going. The thought thus occurred

Customer:

why keep going the highly complex route of Disb +Discrim? Why not forget that completely & go Discrim as per Bob hypothetical example eg


Customer:

declared Day 1, didn’t complain but E took no reasonable steps- why don’t I just takje that simple route!!

Customer:

end

Ben Jones :

well a claim for discrimination will have the same requirements as the above - you initially start by proving you had a disability and that you were likely discriminated then the burden of proof shifts to the employer. Also if you are just claiming for failure to make reasonable adjustments and do not pursue other types of discrimination any compensation will only reflect that and may not be as large as if you had included all occurrences of the alleged discrimination

Customer:

"may not be as large"

Customer:

ok, 1st lets agree something pls

Customer:

in principle; (putting payout to one side for s second)

Customer:

I could go just D route?

Ben Jones :

your options are:

1. Direct disability discrimination where you claim you have been treated detrimentally simply because you were disabled
2. Indirect disability where the employer's actions were not directed at your disability but because you were disabled meant that you were placed at a disadvantage
3. Failure to make reasonable adjustments
4. Harassment or victimisation because you had complained about your disability or were going to do so

Customer:

1&3 are what we are talking about here, (indirect was struck ou)

Customer:

could I go that route?

Ben Jones :

yes you can, it is possible to claim both at once

Customer:

apart from money,

Customer:

can I chnage Case from D+Discrim after 1yr to just D (items 1&3)

Ben Jones :

what do you mean by D+Discrim?

Customer:

Disabilty inc Discrim

Ben Jones :

not sure what you are referring to, there is no such claim, there is no standalone claim for just disability - you claim disability discrimination and that is wither direct disability discrimination or indirect disability discrimination

Ben Jones :

you cannot claim disability AND discrimination

Customer:

sorry. I was using incorrect terminolgy. what I meant is can I change a Case from Disability Discrim with Harassment etc after 1yr to Disab Discrimination only


Ben Jones :

only with the permission of the tribunal and also if it is a different claim you may be out of time to claim it no after a year, so if you wanted to change you can ask the tribunal to see if they will allow it

Customer:

as a chnage would reset the clock & thus qyr downtrack may be beyond Time Limits correct?

Customer:

got disconnected

Ben Jones :

well you only have 3 months to claim fro the tie the alleged discriminatory act occurred so if it has been more than a year already, you may not be allowed to make a new claim as it will likely be out of time

Customer:

unless J allows correct?

Ben Jones :

yes

Customer:

cool

Customer:

last bit;

Customer:

IF J allows time limit issue & if he says yes to Disability Discrim without Harassment etc- what is the financial implication as its less!

Customer:

FYI

Customer:

Schedule of Loss is £183k

Customer:

but I dont expect to get all of that so I have offered a settlement fig of £76 (although I can amendup or down at any time)

Customer:

but above based on inc Hrassment. if I go Disability Discrim without Hrassmnet -what affect on £76k?

Customer:

I get confused as I am aware of the Bands etc but my Barrister at the tim put in £183k which is well above bands so.....

Ben Jones :

impossible to say without knowing details of all occurrences for which you are claiming their seriousness, how long they occurred for etc - not really something for this forum unfortunately, you need to see a solicitor in person for that as it would be too detailed for a Q&A sit like ours

Customer:

I think Banding is just a small part of overall schedule of loss

Ben Jones :

banding is part of it

Customer:

ok

Customer:

I guess my next steps are;

Ben Jones :

but unless you have suffered other losses, like future loss of earnings then it ill be the main part

Customer:

back in Tribunal 3rd time (in 15 days)

Customer:

I ask J to see if he will allow Disability Discrim without Harassment -if he will alow Time issue. IF he says Yes

Customer:

thats my by far the eassier route but IF he agrees, then I need him to advise impactr on possible settlement fig before I committ to going that route

Customer:

otherwise I stick with original route

Customer:

agreed?

Ben Jones :

yes but J may not be able to advise on the impact on settlement - they do not give advice as such so don't rely on them for that

Customer:

ok

Customer:

you hgave been brilliant!

Customer:

thanks for your patience going backwards & forwards on these questions but obviously I needed the definitive answer-so thank u

Ben Jones :

no problem at all

Customer:

ok great. ogging off. have a great evening

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46153
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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