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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor
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I've recently been told and subsquently left an NHS

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Hi, I've recently been told and subsquently left an NHS organisation as I was told that they weren't satisfied that my hidden disability was sufficient for a face mask exemption despite another member of staff being exempted simply for "being on the phone", could there be a legal case here under the Equality Act, especially as I believe they are not even allowed to ask for details of it?
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: This came from an email from a manager there
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I was an agency contractor being paid through an umbrella company
JA: Anything else you want the Lawyer to know before I connect you?
Customer: That's all

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

What was the specific disability please?

Customer: replied 17 days ago.
Asperger's Syndrome

Thank you. When did you leave?

Customer: replied 17 days ago.
6th November (last Friday)
Customer: replied 17 days ago.
Still technically employed by umbrella company as pay is 2 weeks behind
Customer: replied 17 days ago.
Actual notice was given on 9th that I wasnt going back

Thank you very much for clarifying. First of all, I am sorry to hear about the issues you have experienced in your situation.

You are correct that the employer does not have to ask you for evidence or exemption certificates to justify why you are not able to wear a mask. If they insist on it or treat you detrimentally as a result, including forcing you to wear a mask and not giving you work if you refuse, that could amount to potential disability discrimination .

However, that will only be possible if you are classified as disabled to start with. The legal definition of a ‘disability’ can have a broad meaning and there is no single list of medical conditions that can qualify. Potentially, any condition or ailment can amount to a disability if it meets the required criteria.

That criteria are contained in The Equality Act 2010, which 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 and examine it in more detail below:

- Physical or mental impairment – this can include practically any medical condition, be it a physical or mental impairment

- Substantial effect – the effect must be more than minor or trivial

- Long-term - 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. shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities)

Please also take a look at this detailed guide on determining if you are disabled:

https://www.citizensadvice.org.uk/work/discrimination-at-work/checking-if-its-discrimination/check-if-youre-disabled-under-the-equality-act/

If a person satisfies the necessary criteria, they will be classified as being disabled in a legal sense and will have automatic protection against discrimination. This 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. The most obvious adjustment here would be the exemption from wearing a face mask.

If you wanted to take it further you would be looking at an Employment Tribunal claim for disability discrimination .

Before a claim can be made against the employer in the Employment Tribunal, the affected employee would be required to participate in a process known as ‘early conciliation’, which is administered through the Advisory Conciliation and Arbitration Service (ACAS).

The purpose of this process is to allow ACAS to mediate between the employee and their employer to agree on an out-of-court settlement in order to avoid the need for legal action in the Employment Tribunal. The employer does not have to engage in these discussions and the process is voluntary for them. If they refuse to participate, or the conciliation is unsuccessful, the employee will be issued with a certificate by ACAS allowing them to make a claim.

However, if a settlement is reached, the employee would officially agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be included as part of the settlement, such as an agreed reference.

In order to initiate the early conciliation procedure, ACAS must be contacted, either online by filling in the following form (https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute), or by phone on 0300(###) ###-#### They will explain the process and what happens next and get the ball rolling on your behalf.

If the early conciliation process was not successful, ACAS have issued a certificate to confirm that and you still wanted to make a formal claim in the Employment Tribunal, the claim can be initiated via the following link:

https://www.employmenttribunals.service.gov.uk/apply

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 17 days ago.
Hi, the only thing I'm not clear on is which organisation needs to go on the ACAS form, NHS trust itself, the agency or the umbrella company?

Assuming it was the NHS Trust that was guilty of this, it would be them

Ben Jones and other Law Specialists are ready to help you
Customer: replied 17 days ago.
Ok thank you

You are most welcome. If you have any further questions about this then please do not hesitate to get back to me and I will be glad to help. All the best