From InterAction 87, summer 2014
The Equality Act can potentially be used to support people with M.E. to stay in or return to work, says Tony Clough – but only if properly applied.
Many people with M.E./CFS will, sadly, be too ill to remain in work. But for those trying to stay in work, or leave on the most favourable terms, the Equality Act 2010 should provide significant possibilities and protections. This article does not attempt to definitively state the law – I am not qualified to do so – but rather emphasises the importance of getting well-informed advice and support in the work place. A good starting place is Action for M.E.’s booklet, An employer’s guide to M.E.
This includes useful information with which to approach an employer constructively while pointing out that disabled people’s rights are backed up by law. Published guidance on the Equality Act states that M.E./CFS is classed as a disability. Your GP or employer’s occupational health advisor should be able to clarify this and advise your employer of what might be done to help you stay in work by way of reasonable adjustments.
These are changes to any elements of a job which place a disabled person at a substantial disadvantage compared to non-disabled people. For a person with M.E./CFS this might include rest breaks, flexible hours and time keeping, changes to your workload or working environment, alongside support from an occupational health professional. Anything that might reasonably help you stay in (or return to) work should be considered before you or your employer terminates your employment.
Failure to consider or make appropriate reasonable adjustments may be discriminatory. It’s worth you looking over what the Act says about discrimination, as it’s possible that you could challenge your employer about negative treatment or behaviour you may have experienced, and take them to a tribunal if necessary.
Anna* contacted Action For M.E. to say:
“It wasn’t until I sat down with a representative from my trade union, Unison, and looked into the Equality Act that I realised the way I was being treated was not in accordance with the legislation.
“I have been made to work time back for medical appointments when other colleagues did not have to. I have been summoned to meetings with HR and management to explain my absences and illness over and over, again when other colleagues with similar levels of absence did not have to.
“It wasn’t until I told my employer that I felt victimised for being disabled and mentioned the words ‘Equality Act’ that they stopped acting this way.”
The Equality and Human Rights Commission’s sister organisation, the Equality Advisory Support Service, can give advice on how the Act and the related Employment Statutory Code of Practice (available online) applies to you. The latter spells out in great detail what could and should happen according to the law. Ideally your employer and any union you belong to will be well informed and keen to help, as has been the case with Civil Service employee Becky,* who has been on sick leave since a relapse last September.
“Even before my formal three-month review I contacted a member of the local executive committee of my union, the Public and Commercial Services Union, to ask that someone accompany me,” she says. “That colleague has been incredibly helpful, reading Action for M.E. information about M.E. and using Equality Act legislation to query specific reasonable adjustments that could be made to prepare me for returning to work.”
It’s important to keep a record of anything that has impacted negatively on your ability to function in the workplace, and any behaviour you feel to be harassing or discriminatory. If you plan to take action, get the best advice you can before doing so. Well-informed support in the work place, with a clear view of how equality as well as employment law applies to each individual situation, is essential to try to secure the best possible outcome. If you can afford it, or are eligible for legal aid, you can seek advice from an employment solicitor with a speciality in disability legislation.
However, for many people the most immediate source of work-place advice and support will be their trade union. As we have seen, this can be invaluable, but unfortunately union representatives do not always have the specialist knowledge they need.
For example, redeployment on disability grounds could be on more favourable terms than other types. This should be handled sensitively and you should only be downgraded if it is unavoidable or you agree. Depending on the size of the organisation, it may be reasonable for a new position to be created, and while there may be some formalities to determine your suitability for a new role, you should not face a competitive interview.
However, Caroline* told me she was forced into redeployment at a significantly lower grade.
“Throughout the whole redeployment situation the union had no understanding of the Equality Act,” she said. “The day I was told I was being redeployed, I also signed papers for this process as instructed by union rep. I should have been allowed some time to consider it and discuss it fully. I was told I had to be actively looking for a job despite being on certified sick leave.”
On this occasion, the union may have approached the situation on the basis of other employment– related legislation, with which it was perhaps more familiar, but which is less favourable to people with disabilities than the Equality Act. The specific needs of disabled people also need to be understood and factored in, as in the case of Diane.*
“Eventually when it became clear that work had been discriminating against me, I started to talk about a legal process with my union providing the advice,” she says. “It seemed to me that the rep was more interested in my going back to work than exploring other options, like redundancy or suing for discrimination. I felt that my wishes weren’t being listened to and that this might be because M.E./CFS as an illness was being simplified.”
Few would relish the thought of going to a tribunal but clearly a person with a condition like M.E./ CFS will find this prospect particularly daunting, and an employer could exploit this. This is where a union taking the lead could be of particular help to a person with a disability.
“I worked as a senior university lecturer in nursing for more than 22 years, but was put through capability proceedings after being diagnosed with CFS/M.E. in April 2013,” says Emma.* “My union, the University and College Union, put together an excellent case at the hearing based around the Equality Act and the clear fact that, as my employer, the university was required to make reasonable adjustments to allow me to work with M.E.”
If you have a good potential case, and your employer is robustly challenged, you may never need to actually go to a tribunal. But this can only happen if you, or anyone representing you, is well-informed and confident.
When I felt that my union seemed uncertain of the options available under the Act, and might not be using it to my best advantage, I checked my understanding with the Disability Law Service. An advisor indicated that they often hear from people whose unions have not been able to make best use of the Act.
I researched the matter further and discussed the issues with some of the people quoted in this article. Caroline told me that, at a long and complex meeting with her employer, the bulk of the input around disability, reasonable adjustments and the Equality Act came from her. Like any piece of legislation, the Equality Act is detailed and highly nuanced.
But unions often rely on volunteer workplace stewards who may have limited training and experience in disability and equality areas and may be no match for an intransigent employer or HR professional. So the training, documentation and other support unions offer their representatives is very important, as is the way their services are structured and delivered.
I contacted more than 20 unions about these issues but only a few responded. Unite sent me the documentation it provides to activists which showed an impressive awareness of the issues.
I also had a very encouraging discussion with the Communication Workers Union which was keen to discuss its equality and disability provision, including a dedicated unit offering hands-on advice on specific cases. I would love to hear from anyone who has had personal experience of this as, on paper, it looks like a model of good practice.
I sent Unison a detailed account, using my specific concerns, to raise wider questions about its disability provision. I also asked that it consider adopting an approach similar to the Communication Workers Union. I am still in discussion with them in the hope that they might learn something from my experience to the benefit of other disabled members.
I am concerned that this potentially powerful and far-reaching piece of legislation isn’t always being effectively used. We should be able to rely on large and powerful organisations like trade unions to understand and be ready to explore the full potential of the Equality Act, in the workplace and the courts, for the benefit of some of the most vulnerable workers
*All names have been changed to protect anonymity.
About the author
Tony has had M.E. for more than 10 years, and has been a member of trade unions for around 30 years. As his health permits, he is collecting information on the differences between the potential offered by equality legislation and the actual experience of disabled people, in the hope of helping to encourage good practice, and challenge bad.