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Ben Jones
Ben Jones, UK Lawyer
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Is it discrimination if after being off work with depression

Resolved Question:

Is it discrimination if after being off work with depression and anxiety due to abusive relationship resulting in divorce and sibling suffering from Cancer, return to work and am observed delivering a lesson receive an unsatisfactory grade and the asked to attend a "capability interview " with boss ? I have had no training , no appraisal all year and have no teacher training unlike other team members . I would just like to know where I stand legally please ?
Thanks
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

I have worked for the College since august 2011. Stated as a Careers Adviser and then transferred to Personal Development Adviser in November 2013

Expert:  Ben Jones replied 2 years ago.
There would only be potential discrimination if you suffer from a disability. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.
The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.
I will break this definition down:
• Physical or mental impairment – this can include nearly any medical condition;
• Substantial effect – the effect must be more than minor or trivial;
• Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
• Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)
If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.
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.
In terms of taking capability action, an employee's poor performance is a potentiality fair reason for doing so. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.
In order for a formal action for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.
Generally, the reasonableness of such action would be measured against the following criteria:
• Did the employer have reasonable belief in the employee's incompetence;
• Was the situation investigated and was the employee given the opportunity to voice their side of the story;
• Was the employee aware of what was required of them in terms of satisfactory performance;
• Were steps taken to minimise the risk of poor performance through training, supervision, etc;
• Was a proper appraisal conducted and was the problem identified in a timely manner;
• Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;
• Did the employer consider offering alternative employment.
If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. The first step would be to raise a formal grievance. The next step would be to consider whether a claim for disability discrimination should be made in an employment tribunal (the time limit for claiming is only 3 months from the date of the alleged discriminatory act taking place).
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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