Case 1: Adjustments not provided in job interview.

Requesting adjustments before the interview

I was delighted to be shortlisted for interview at a place I really wanted to work. Straight away, I emailed the HR contact (HR-Junior) to let the employer know I am deaf and need the names of the interviewers in writing and the main interview questions given to me in writing as well as verbally in the interview. I also asked for the interview panel to be told I was deaf.

People’s names are a nightmare for me as a deaf person, context and other cues don’t help. I struggle to remember names I have only heard. If I see a name written down I am much more likely to remember it. Written questions mean even if the interviewer is difficult for me to hear I have access to the question in an accurate format and can be sure I understood it correctly. It also helps with my memory as I tend to find it difficult to hold things in memory and think properly at the same time. Listening, especially to strangers takes a lot of processing time and energy for me.

A few days later HR-Junior replied to confirm the employer was happy to make the adjustments I had requested.  She asked if she could share my adjustments request email with the panel chair so the adjustments could be put in place – I emailed back to say she could do this.

Interview day

On the day of my interview (day 0) I realised I had not been given the interviewers’ names in writing. I decided not to worry as sometimes they are provided during the interview itself – especially if the panel staffing has not been finalised in advance.

I reported to the correct place, handed my documents over for the obligatory checks and photocopying before being taken to wait for the interview. After a few minutes, the Chair of the panel invited me into the room. There was the usual slightly awkward settling in period before the Chair started the introductions and interview proper.

I soon realised the written-questions were not being provided…

As a deaf person I have to concentrate hard to follow speech, especially with people I do not know well. If I allow myself to become distracted my brain will stop processing the speech meaning I will have no idea what has been said. At worst, (which often happens to me in shops) is a situation where I stop realising someone has even been speaking, even when I am expecting them to talk to me and think I am concentrating on their face/mouth movements.

I could not allow myself to get distracted by thinking through the pros and cons of interrupting the interview so decided to just do my best without the written questions. It was quite hard not to panic. I felt there were at least two occasions where the interviewers and I were talking at cross purposes and not understanding one another well. My memory of the interview was patchy because I had to concentrate so hard on hearing – I couldn’t even remember the names of the interviewers.

Telling HR adjustments didn’t happen

Day 1: I emailed HR-Junior as soon as I got home to let her know that the interviewers’ names in writing and written questions adjustments had not been provided.  To my surprise she replied the next morning (day 2) admitting that she had filed my email without passing my adjustment request onto the panel so the failure was her fault – she was very apologetic. I realised this meant the panel had not known I was deaf, but I had given my answers as if they did – which could have come across as rude or strange.

At this point I did not know the interview outcome and was worried my performance had been negatively affected. I asked HR-Junior to ask the interview panel to  consider ways of mitigating the disadvantage the lack of adjustment and stress of that had on my performance.

Didn’t get job, disadvantage concerns dismissed by Chair

A few days later (day 5) I received an email from an HR-Senior saying I had not been successful in getting the job and offering me feedback. The email also included a message from the panel Chair saying that she was 100% confident that I had not been disadvantaged as the panel did not notice me struggling to hear or answer any of the questions.

I decided to just ask HR-Senior for the interview feedback and take a few days to think about the adjustments issue. It is often better to say nothing than something you may later regret. HR-Senior sent me feedback on day 9.

Deciding whether to complain or not?

I took a little bit of time to think about whether I would pursue my complaint. I talked to friends and family including many who have a lot of experience in the area of deafness and some who were able to help me overcome self-doubt, draft and proofread a formal and legal complaint.

I had several reasons for deciding to pursue the complaint including:

  • The panel chair was not qualified to judge whether I was at a disadvantage (I had not asked her to make that judgement).
  • By ignoring the disadvantage the panel had not even tried to mitigate it, so I was not able to trust the fairness of the appointment.
  • I am left with a lot of anxiety about whether my requested adjustments would be in place for future interviews.
  • It was a ‘simple’ case and I had enough evidence of the failure that Employer couldn’t deny it had happened.
  • As I hadn’t got the job, I didn’t have to maintain an ongoing relationship with Employer.
  • It was an ideal opportunity to run an entire case as a Litigant in Person and if I screwed it up, I could withdraw with only my time/energy lost.

I had to submit my complaint relatively quickly as there is a limited time that disability discrimination complaints can be taken in employment and that includes allowing the employer reasonable opportunity to investigate before escalating to the next stages.

Data Protection Act – Subject Access Request

Before I submitted my complaint I made a Subject Access Request (sent on day 25) for any personal data Employer had about me under the Data Protection Act.  To avoid delay I made payment of £10 and enclosed a scan of my passport and a utility bill for Employer’s checks upfront.

Complaint Letter

On Day 28 I sent my complaint letter which loosely followed a “letter before action” format with the following structure:

  • Paragraph summarising the nature of the complaint and which laws I was citing.
    • Complaint for ‘failure to make reasonable adjustments‘ under the Equality Act 2010 on the date of interview.
  • Declaration in legalese that I am a disabled person with details and impact and relevance of my impairment.
    • I confirm that I am a disabled person under the ambit of Section 6 of the Equality Act
    • I defined my level and age of acquisition of deafness.
    • I explained even with hearing aids I have difficulties understanding and processing speech, especially from unfamiliar speakers.
  • Chronology of events:
    • Disclosing my disability before interview.
    • Adjustments not being provided during interview.
    • Reporting adjustment failure to HR-Junior and requesting mitigation.
    • Response from HR-Senior including Chair saying I wasn’t disadvantaged.
  • Explaining the issues
    • I believed I had disclosed correctly before interview.
    • Why I wasn’t convinced filing one email explained the failure.
    • How the Panel Chair’s response was inappropriate and why.
    • Impact of the adjustment failure on me.
  • Remedy (what they needed to do to make amends):
    • Non financial requests:
      • Anonymised interview scoring data for all the interview candidates so I could compare my performance (without adjustments) compared to other candidates and understand the appointment decision.
      • Employer to review their systems so that other disabled or deaf people’s adjustment requests would not be lost in future.
      • A written apology for the failure to make adjustments and the Panel Chair making an inappropriate judgement about disadvantage.
    • Loss of Earnings‘ (loss of chance at being appointed)
      • Showed workings for calculating the salary minus tax and insurance plus benefits like  pension contributions. I then halved that figure to reflect 50% chance of appointment.
      • Assumed 12 months of lost earnings and listed reasons why as a deaf person it is harder for me to find employment compared to a non-disabled person.
    • Injury to Feelings
      • I just said “at the top end of the lower Vento band” rather than specifying an amount.
  • Response
    • Citing short timescales I requested acknowledgement in 7 working days and a full response in 15 working days.

Employer’s Initial Response –  offering settlement

Day 45 – To my surprise the employer made an immediate offer of settlement in a letter which:

  • Acknowledged that Employer failed to provide the adjustment,
  • Made a pretty good and genuine apology,
  • Claimed I didn’t actually suffer any “legally definable” losses,
  • Offered a significant amount of financial compensation of 15% of the loss of earnings and an amount at the lower end of the lowest Vento band.

However this compensation was on condition that I agreed not to talk about the discrimination that occurred, settlement offer/terms and accepted within 14 days.

Confidentiality in settlements

Making a generous sounding offer of financial compensation tied to restrictive confidentiality (gagging) clauses with a tight timescale for acceptance is a very common tactic from defendants. Many claimants are intimidated by this, especially if the defendants have expensive lawyers or claimants’ legal advisers are supporting the ‘status quo’. I have learned it is often worth making a counter-offer and trying to push back against terms of settlement that you do not like and not worrying too much about the timescales as long as you make a response in this time.

Negotiating confidentiality in settlement

After getting some help from some friends with the wording, I wrote back to HR-Boss at Employer on day 58 to say that I welcomed the apologies,  prompt offer to settle and financial terms but I wished to discuss the confidentiality elements. I stressed that I was happy to not identify Employer or their staff but I wanted the right to be able to write about what happened including details of the complaint and eventual outcome.

HR-Boss and I exchanged several emails with different drafts around confidentiality. The legalese for some of them clearly did not say what HR-Boss was claiming. I responded to each unacceptable draft with an polite and persistent explanation of why it was not suitable and reminded her what my acceptable terms were. She had to go away to deal with her legal advisers a few times. I was also unwell for a week or two so there was some delay caused by that.

Eventually on day 77 HR-Boss sent me some draft legal wording which seemed to be acceptable which then had to be sent to Employer’s legal advisers for addition to the final settlement agreement.

ACAS Early Conciliation Service – keeping claim open

While waiting for the settlement agreement I realised I was running out of time and had to file with the ACAS Early Conciliation Service to stop the clock. All communication with ACAS was by email and I was able to let the Conciliator know we were 90% of the way to settlement so she held-off on contacting Employer for up to 28 days.

I let HR-Boss know I had done this as a formality.

Settlement bureaucracy – seemingly endless

On day 84 I received an email from HR-Boss saying she was posting two copies of the settlement agreement and Employer wanted me to seek independent legal advice at their expense. I was a bit thrown by this, but having done some research, this seems to be an ACAS requirement for settlements.

A friend recommended a solicitor who I contacted immediately and corresponded with for about a week (day 90) before my case was assigned to a ‘legal executive‘ who contacted me for a copy of the settlement agreement. I heard nothing for over a week, so I sent an email asking for a response, and only then (day 100) got told I needed to send copies of my passport or driving licence and a utility bill “for checks”. This annoyed me because I had repeatedly asked what documents the legal advisers needed and neither had addressed that question. I was away from home so it was a further 4 days (day 104) till I could email over the documents. Meanwhile HR-Boss was pressuring me for the signed settlement and adviser’s certificate – all I could do was say “legal adviser being slow” and agree to keep chasing.

To be fair to her, once I sent the documents, the Legal Executive promptly on day 105 sent me a summary of what each section of the settlement meant in plain English with a suggestion of one amendment to ensure I was not liable for tax on my compensation payment. She did not address the confidentiality elements I had explained my terms on, so we spent a further 10 days exchanging emails until I was sure she had taken those fully into account resulting in a slight amendment to that wording. I was asking something fairly unusual for a claimant so this was worthwhile being careful with.

On day 112 I received the ACAS early conciliation certificate by email. I had forgotten to ask for an extension of two weeks which would probably have been granted. I thought I now had about a calendar month which I calculated as about day 143 to issue an ET1 form to the employment tribunal at a cost of £250 to keep my case legally open [note: employment tribunal fees have since been ruled unlawful by the Supreme Court].

By day 114 I was happy with the advice and thought I could just ask for the signed adviser’s certificate and wrangle the amendments and final copies with HR-Boss directly, but Legal Executive explained she  had to see the amended settlement before she could sign the certificate – which does make sense. She also explained that she was on leave from that afternoon till day 125. I sent the requested amendments to HR-Boss and let her know Legal Executive would be away on leave. HR-Boss replied saying she would send my amendments to Employer’s legal advisers. I suggested updated settlements were emailed to me – quicker than post.

The updated settlement was sent to me by email on day 117. I sent the settlement to Legal Executive for her return from holiday on day 122. Legal Executive emailed me on day 126 asking for a final confirmation that I was happy with the settlement. I did this and she very quickly sent me a scan of her advisers certificate.

I signed and dated the settlement, scanned my signature and rebuilt the whole thing as a single PDF and sent it to HR-Boss. She replied to say they need original documents and that Employer would date them – I queried the need for original documents but Employer apparently insisted. I emailed Legal Executive and asked her to send her certificate to Employer by post and printed, signed and posted two copies of the settlement to Employer myself.  I email HR-Boss to let her know both sets of papers in the post and received an out of office saying she was away for a week… (Day 131)

Day 138: I receive an email from HR-Boss saying she’s received all the papers, is sending me an original signed copy of their agreement with copy of adviser’s certificate and the settlement payment has been put in my bank account. I check my account and send an email back to HR-Boss confirming I have received the settlement payment. On day 139 I receive a copy of the signed settlement agreement in the post.

Trying to make Virgin Trains East Coast accessible to me

I have a work meeting on Thursday and Friday of this week in London.  This means travel by train.  I’m much more able to get around if I have my bike with me, so I wanted to book a bike space to take my bike with me.  My mobility impairment mentioned in previous posts makes using the tube and walking very difficult and tiring.  While taking my bike with me sounds pretty simple, it has not been.

First, I contacted virgin trains through facebook:

2017-06-03 (2)
As you can see, I wasn’t terribly happy with their response.  I emailed their customer service email address to make the same request and then decided to investigate their special assistance process.  It turns out the form for special assistance is pretty long. Despite taking the booking number which has all the details of the trip, you have to manually input all those details too.  Plus your home address – which is relevant why?  Nevertheless, I duly filled out the form and sent it off. The response?

“Thank you for your assistance request.

Have you reserved bicycle space on your journey as there is no storage on board for a bike?

Many Thanks”

Not especially helpful, or hopeful. I replied:

“I have attempted to book a place for my bike, however, I have not been able to online.  I booked the ticket through work and there was no option to add my bike to the booking.  My bike is a mobility aid, and I need to take it with me so that I am able to get from Kings Cross to my meeting at the Oval.  I can’t walk far enough to get there on the tube.  I understood from your website that there were 3 or 5 spaces for bikes on your trains? Is this not correct? How are other mobility aids stored?”

I’m disappointed by how difficult it is to use public transport with a bike, and even more disappointed that rail companies aren’t supporting disabled passengers to bring mobility aids with them.  I hope I manage to bring my bike with me so I don’t have to pay for expensive taxi’s in London and lose my autonomy. Time will tell, watch this space….

How to prepare for pre-employment occupational health appointments

This blog does not constitute legal advice

The Equality Act 2010 changed the law so that employers are usually obliged to wait until after they have made a job offer to ask about absences and other health related information.  Nevertheless, when someone discloses a disability or other health issue that may affect the performance of their duties or may require that adjustments are made, occupational health providers will usually be involved.  In a former life, as a HR consultant, I talked to or met with 6 occupational health doctors and nurses.  As an employee, I’ve been referred to a further 6 to discuss my own health and disabilities.  Having experienced both sides of this, I thought it would be helpful to put together some advice for others doing the same.

Filling in the health form:

  • Answer the questions put there honestly
  • If your answer doesn’t neatly fit into one box or the other write a short note
  • Send it back directly to the occupational health provider if that is an option
  • If you have previous occupational health reports or access to work reports that detail adjustments that you need, send those in too.

Preparing to see the doctor

  • Make a list of any health conditions or impairments that you have – even if they weren’t on the initial form
  • Decide which of these you want to disclose.
  • Make a list of the medications that you take (you don’t need to hand this over, but you could refer to it if they ask for this information)
  • Make a list of the potential impacts of your medical conditions, impairments or disabilities on your new job
  • Make copies of previous occupational health reports and access to work reports to take with you
  • Think about whether you need or want any adjustments to your work environment – if there are, think about how these link to your health conditions or impairments.
  • Find a friend/therapist/partner and talk through the link between your health condition or impairment and the adjustments you need.  This should help you to clarify the information you need to share and to feel more confident about the link between your health/impairment and the adjustments that you need.
  • Lots of people find this kind of appointment stressful, take care of yourself and ensure you have support around to call on if you need it.
  • You are entitled to see the report before it is sent to your employer. Always ask for the report to be sent to you first. 

Seeing the doctor

  • Do your best to answer questions that they ask clearly
  • If you can, link the reasonable adjustments that you need to the questions that they are asking and to the impact of your medical condition, impairment or disability.
  • Ask the doctor whether they can think of other adjustments that might be helpful for you – you know your medical condition better, but chances are they will know the employer and the kinds of adjustments that are easily made much better than you will.

Once you get the report

  • If they have factual errors or have missed out important details point this out.
  • If there is information in the report that you would prefer was kept private, say so.
  • Remember, you don’t actually have to disclose the report at all, though it is usually helpful if you do.
  • If they recommend contacting access to work, do so quickly.
  • Be prepared to be asked to meet to discuss the contents of the report with your line manager.

 

Occupational Health reports are usually helpful for recommending workplace adjustments so that people can work effectively. Where recommended adjustments are not made, they can provide evidence to the employment tribunal of failure to make reasonable adjustments.  While appointments with medics are stressful for most people, the pre-employment occupational health appointment is usually supportive and a way of ensuring that your new employer is providing all the support that you need.

Pressure to settle

I met with the lawyers yesterday from my union.  It wasn’t an easy thing to do, and they put the respondents case to me.  That was pretty difficult. I recognise they have to test the evidence, but it was hard going.  Right before the meeting, ACAS called to ask whether I would be interested in any form of settlement at this stage. I called them back after the meeting and said I wanted to return to work, and that with the adjustments in the latest occupational health report in place I thought I would be able to.

I think settling now would do a few things.  It would give me time and space to recover my mental health.  It would allow me to explore other career options – though I may have to leave acadcemia.  It would give me some financial freedom.

The thing is, the pendulum on whether or not to settle the case swings one way and then the other.  I start out thinking that I don’t want to settle, and then something happens and I do.  I don’t want to give any more of my life to this case, this employer, this dispute.  But then I don’t want to be part of this huge problem of people with discrimination cases settling them with binding gagging clauses so nothing really changes.

So, eventually, I sat down with the COT3 agreement and looked at the terms that I didn’t want to sign up to.  I revised parts of it and deleted others. I sent that back to them with a higher financial settlement offer. They keep dragging it out – so I put a time limit on it of end of play tomorrow.  I can’t see them agreeing to the changes I have asked for, and I can’t see them agreeing to the higher figure. I guess it is a case of ‘watch this space’.

Avoiding reasonable adjustments – Precarious work

During and following my undergraduate degree I found myself in various types of insecure work. Some of it was agency work, some of it was short term contracts and one job was on a graduate scheme. In some of these places being in a carpeted environment affected my health, and in others, it didn’t. In some places, I didn’t ask for adjustments because I didn’t need them. In others, I didn’t because my job was too precarious. I rationalised it by reminding myself that it just made me a bit wheezy, and I didn’t really need to work without carpet. These jobs had an impact on my health and my wellbeing, but I didn’t feel sufficiently disabled, sufficiently affected or sufficiently able to ask for those adjustments. My experience of how long and hard I’d had to fight as an undergraduate made me feel like it was just too hard. Especially in a job where I might get dismissed if I fought for myself.
Looking back it really makes me realise how much the fight with my undergraduate university took it out of me. It was demoralising and frustrating. The endless questions about whether I really needed to have a carpet-free room. The requests for justification. It was exhausting. I didn’t have the resources back then that I have now – and I didn’t know I needed them.

My life changed for the better once I had an understanding of the social model of disability, once I identified myself as disabled, once I knew other disabled people, once I understood something of the law, once I learned how to advocate more effectively for myself. None of these things was a silver bullet, but they were resources that I wish I’d had as a young person. I hope some of my writing helps other people to access some of those resources.

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