>> Essentials....
I felt ostracised
and isolated
Workplace discrimination against
people with disabilities goes far
beyond not providing a ramp
for wheelchair users or adapting
premises. It can be insidious and
indirect, or even downright bullying.
So what can you do if it happens to
you? Laura Marcus reports.....
When Gary Mazin was told during a company
trip to Amsterdam that attendance was
mandatory at a meeting to be held in a dark
and noisy nightclub, he nally knew his
employers would never take his disabilities
seriously. They had repeatedly refused to
make allowances for him or recognise he had
a condition that required adaptation.
Gary, 42, a recruitment worker, has Ushers
Syndrome, a condition he was born with and
which leads to progressive sight and hearing loss.
The nightclub meeting was an absolute
nightmare for me, he says. I had told my
manager the meeting would cause me
difculties and why. He just wasnt interested.
Said I had to go. Id never normally go anywhere
near a nightclub.
They mocked me as I
stumbled into things. It was
very playground-like and cruel
After people had a few drinks, a number of them
started to ridicule me openly for not being able to
140 Living with Disability
Gary Mazin
see properly. They mocked me as I stumbled into
things. It was very playground-like and cruel the
rst time Id been treated like that as an adult.
Because Gary always hit and exceeded his
targets and did very well at the job hed been doing
for eight years, he knew his employers would not
be able to nd an excuse to sack him. Instead, he
says they managed him out of his role.
I complained to HR but they said it was very
much my word against theirs. The HR managers
response was: Well what do you expect us
to do? Once word got out that Id dobbed on
another staff member I was treated with open
hostility and pretty much removed from any
decision making.
They said it would be a good idea for me to
work from home for a couple of days a week,
then this stretched to three then four days a
week, adds Gary. I felt ostracised and isolated
from the whole company. It was obvious they
wanted me to leave.
Gary points out that the company was very hot
on always making sure that special meals were
available for employees with dietary or religious
issues, but they could not or would not adapt to
a worker with disabilities. The recruitment world
is very sales driven and banter is part of every
day working life. Thats ne. But theres a
difference between banter and outright bullying:
when it happens to you, you know it.
Theres a difference between
banter and outright bullying:
when it happens to you, you
know it
For a while Gary had been able to hide his
condition, but as it progressed he found he
couldnt any longer. He had to ask for specially
adapted headphones to help him hear better.
The company obliged but made him feel awful
about it, saying: You do realise these cost 100!
He felt as if he was being an awkward employee
when all he needed was a slight adaptation to
help him do the job he was very good at.
In the end Gary asked for, and was given,
voluntary redundancy with a payoff as the
company was concerned he might have had a
case against them for discrimination. As often
happens with people who feel theyve been
bullied out of a job, he preferred just to leave than
take them on.
Im much happier now working for Enhance The
UK (http://www.enhancetheuk.org), a charity that
works to promote disability awareness training in
the workplace, he says.
Now hes had a chance to step back and
assess what happened to him, Gary says hes
ideally placed to help employers provide better
working conditions for people who have
disabilities but can still contribute and still want
to work. Theres a lot of ignorance out there. It all
stems from a lack of communication. At my last
job, I was openly left out of conversations and
ignored which makes it very difcult to do your
job effectively.
Living with Disability 141
 >> Essentials....
Shue Yin Lo is a solicitor who specialises in
employment law with a particular focus on
workplace discrimination. She explains that the
law provides employees with protection from an
employer refusing to pay a bonus due to
someones disability, penalising someone for
taking disability-related sick leave and failing
to make reasonable adjustments. These might
include issues like altering the disabled
employees hours of work and/or location of work
in accordance with medical advice.
Employers may also have a duty to make
changes to work premises.
Disability is dened as a physical or mental
impairment and that impairment has a
substantial and long term adverse effect on the
individuals ability to carry out day-to-day
activities. The problem, says Ms Lo, is that
most people fail to be classied in this way as it
is so tightly dened: For example what exactly
constitutes substantial and adverse effect?
Depression may be classied as a disability as
its a mental impairment, she adds. However, if
you are treated very badly at work, and you are
stressed as a result, then thats not necessarily a
disability by itself. You have to satisfy the
denition to be protected by employment law.
Making a case
There are many hurdles to overcome before
you can bring a case of discrimination against
an employer. Now that it costs 1200 to take
a case to an employment tribunal, cases have
decreased by 64 per cent, says Ms Lo. Add to
this the removal of legal aid and its clear that
its become incredibly hard to sue an employer
successfully.
Many solicitors will now work on a no win/no fee
basis but this means theyll only take on cases
they think they have a very good chance of
winning. If youre in a trades union, you could get
support there with the fees and legal advice
but many people arent in a union, or work for a
small company where unions arent recognised.
142 Living with Disability
The trades union Unison has twice taken the fees
issue to court on the basis that its
discriminatory in itself but it failed to win. It may
however make another attempt if it can nd
sufcient evidence that the fees themselves
discriminate against people with disabilities. You
can apply for fee remission if you have no savings
or are on benets but only 51 per cent of fee
remission applications are accepted.
The fees were brought in to stop vexatious
claims against employers but the unintended
consequence of this has been that many people
now feel unable to bring an action when they
might very well have a case.
However, if you have a strong case, the act of
starting the process can be enough to jog an
employer into either taking action or agreeing on
a severance package. Many cases are settled
out of court and with these come a condentiality
agreement which means neither side can
discuss it. That makes it difcult to know how
much disability discrimination there is in the
workplace.
Garys case, for example, may seem to be a
clear cut indication of discrimination due to his
disability, but it might have been difcult to prove
to a tribunal especially as his HR manager
insisted it was his word against others.
Also in a work environment where banter is the
norm, the line between banter and bullying is a
thin one and incredibly subjective.
Taking steps
That said, there are steps can you take if you
think youre facing discrimination at work due to
a disability. First you must talk to your
immediate manager. They may not be aware you
have a disability. There may also be a grievance
procedure you can instigate as your employer
may be in breach of employer policy on bullying
and equal opportunities. Most large rms have
such policies in place now.
Smaller employers may not have clear
procedures or an HR department but they will
usually have an outsourced company or
individual that provides this service. Whatever
size company, you have a right to insist on a
face-to-face meeting with your supervisor or
line manager and you also have the right to take
either another member of staff with you for
support or a trades union representative and
that applies even if your workplace doesnt
recognise trades unions. If youre unhappy with
the outcome you can appeal.
The next step is to go to the conciliation service
ACAS as an employee must attempt to solve
an issue rst without going to court. ACAS will
provide a questionnaire for the employer to
complete. Although there is now no legal
requirement for an employer to do so, if it goes to
tribunal, failing to do this may go against them so
its in their interests to comply. Only
after these stages have been completed can you
make a claim at an employment tribunal. You
have to act within three months of the
issues arising.
Employer support
Kate Knapton is an associate solicitor who
specialises in employment law and works for
the employer side as well as the claimant.
She is a former HR manager and member
of the Chartered Institute of Personnel and
Development, giving her perspective from
both sides. She also advises companies
on how to facilitate employment and workplace
environments for people with disabilities.
There are a lot of good
employers who want to
support people with disabilities
because they often make the
best employees
She comments:There are a lot of good
employers who want to support people with
disabilities. This is because they often make
excellent employees. They know what they need
and can communicate it to employers. And in
my experience, despite perhaps general views
to the contrary, they have the best attendance
record.
Ive worked with people who have
profound disabilities yet hold down fulltime
jobs, she adds. It benets both sides to be able
to support everyone in the workplace because
if you dont, youre potentially losing very good
employees.
A lot of this is common sense, getting
employers to sit down with people and see
what support they need, then trying to provide
it. You can get good quality employees as a
result.
Understanding
your legal
employment rights
Under the Equality Act 2010, employers have a
duty to ensure disabled people are not placed at
a signicant disadvantage at a job interview or at
work. However this Act only applies in England
and Wales.
There is different legislation in Scotland, and in
Northern Ireland the Disability Discrimination Act
1995 is the relevant piece of legislation as the
Equality Act has not yet been adopted there.
Living with Disability 143