A question regarding emp. Law, dyslexia and job probation.
Discussion
t sherlockwhoami said:
Apology accepted.
hahahahahahahahhaha did you mistake me for someone else? or should I run up the irony flag?
BV is a barrister well versed in dyslexia and employment law
tonker is a solicitor who by nature is a generalist who employs barristers when his knowledge is lacking
that along with the Royal College of Nursing stating that a nurse need not tell an employer that they suffer from dyslexia il stick with my view thank you very much
mph1977 said:
There is some very selective reading of the RCN document going on.
Fundamentally if you do not disclose you have no right or expectation to recieve the protection offered by the Equality Act.
not as I read itFundamentally if you do not disclose you have no right or expectation to recieve the protection offered by the Equality Act.
if you don't disclose you can have no expectation to receive the help offered by the act ( an employer cannot be expected to help those it dose not know needs help)but you are still protected from discrimination by your employer which is what this thread is about.
My limited understanding is that in the initial application the employer cannot ask about protected illnesses or disabilities.
Once the candidate has been either selected as successful or put into a pool of candidates who may be employed in future, they can be asked on the basis of their ability to do the actual work.
I presume this is to prevent 'screening out' at the application stage.
What we don't know here is at what stage the person was asked, if at all, and, if they were dishonest at any time.
Once the candidate has been either selected as successful or put into a pool of candidates who may be employed in future, they can be asked on the basis of their ability to do the actual work.
I presume this is to prevent 'screening out' at the application stage.
What we don't know here is at what stage the person was asked, if at all, and, if they were dishonest at any time.
The old days in which barristers were thought to outrank solicitors have long gone. All lawyers are equal! (BTW, a lot of people on PH strangely refer to lawyers as being in some way distinct from barristers, but barristers are just a sub set of lawyers, as are solicitors, and there are various other kinds of lawyer as well). Some solicitors are super specialists who know more about their chosen field than any barrister.
It so happens that I have lots of experience of discrimination cases. I am not sure if tonker has that experience. His posts suggest to me that he has not, but I may be wrong. Based on my experience, on the very limited facts stated by the OP, I think that the employer might face some difficulty if the nurse elects to sue. I would not be inclined to advise the nurse to leave the dismissal unchallenged but I cannot say at present whether a challenge would succeed. Several people here are making big assumptions about the facts, and being very high horsey and moralistic about a disabled person who may feel uncomfortable sharing the existence of her disability; but we need more detail from the OP before any of the real lawyers here can advise confidently. The pub lawyers will advise confidently without knowledge of facts or law, as they always do.
It so happens that I have lots of experience of discrimination cases. I am not sure if tonker has that experience. His posts suggest to me that he has not, but I may be wrong. Based on my experience, on the very limited facts stated by the OP, I think that the employer might face some difficulty if the nurse elects to sue. I would not be inclined to advise the nurse to leave the dismissal unchallenged but I cannot say at present whether a challenge would succeed. Several people here are making big assumptions about the facts, and being very high horsey and moralistic about a disabled person who may feel uncomfortable sharing the existence of her disability; but we need more detail from the OP before any of the real lawyers here can advise confidently. The pub lawyers will advise confidently without knowledge of facts or law, as they always do.
Thank you all for your replies and I will pass a link from this thread to her to make up her own mind as to what to do next.
This is tricky things as she has experienced quite a lot of discrimination in her life and TBO I don't know if she would be prepared for the hassle, stress and anxiety that such a case would throw up. Also and perhaps more pertinent as she plans to continue as a nurse, she is more than a little anxious of the implications for her long term career in going down such a path.
Once again, thank you for your replies. This has proved for me to be an eye-opening and thought provoking read.
Cheers,
DMN
This is tricky things as she has experienced quite a lot of discrimination in her life and TBO I don't know if she would be prepared for the hassle, stress and anxiety that such a case would throw up. Also and perhaps more pertinent as she plans to continue as a nurse, she is more than a little anxious of the implications for her long term career in going down such a path.
Once again, thank you for your replies. This has proved for me to be an eye-opening and thought provoking read.
Cheers,
DMN
I understand what you are saying, and it is hard for one person to be a flag bearer and trail blazer, but if no one stands up to antediluvian employers who trash disability rights*, disabled people will continue to be shat on in the workplace. This, by the way, is one reason why trade unions are still valuable things. The fight is not so lonely when there are numbers behind you.
* That may or may not have happened in this case - there is at least a sniff that it has.
* That may or may not have happened in this case - there is at least a sniff that it has.
Sadly, this accords also with my experience. Public sector employers should give a lead on equality issues, but are often hopeless on this score.
I query, by the way, the folk wisdom that a successful claimant at an employment tribunal will suffer significant career harm in consequence of winning his or her case. My experience has been that good employers do not object to people who sue bad employers. NHS whistleblowers do, however, sometimes get clobbered, as Stafford et al showed.
Whistleblowing legislation is to a large extent ineffective, sadly. It is used as a blackmail weapon by chancers posing as whistleblowers, and real whistleblowers often get nailed.
I query, by the way, the folk wisdom that a successful claimant at an employment tribunal will suffer significant career harm in consequence of winning his or her case. My experience has been that good employers do not object to people who sue bad employers. NHS whistleblowers do, however, sometimes get clobbered, as Stafford et al showed.
Whistleblowing legislation is to a large extent ineffective, sadly. It is used as a blackmail weapon by chancers posing as whistleblowers, and real whistleblowers often get nailed.
I'm sure it not relevant to the OP but I'll post this as it may help others.
My daughter in law to be is currently doing a degree. She is dyslexic and is getting a lot of help from the university - laptop with special software to help her, tutors that understand her problem etc. etc.
But if she hadn't told them they wouldn't be able to help.
Sometimes she doesn't think she has a problem as to her it's normal - maybe the OP's relative is similar?
My wife is disabled and when filling in job applications has stopped ticking the disabled box. She found that a lot of employers have a 'give a disabled person an interview' policy (no doubt box ticking for some government form) and so wasted her time.
Now she is getting less interviews but they are more relevant and not done just for the 'box ticking'.
It did back fire a few weeks ago when the interview was on the second floor and there was a fire drill so the lifts didn't work! The interviewer was impressed that she didn't 'tick the box' but they still didn't give her the job.
My daughter in law to be is currently doing a degree. She is dyslexic and is getting a lot of help from the university - laptop with special software to help her, tutors that understand her problem etc. etc.
But if she hadn't told them they wouldn't be able to help.
Sometimes she doesn't think she has a problem as to her it's normal - maybe the OP's relative is similar?
My wife is disabled and when filling in job applications has stopped ticking the disabled box. She found that a lot of employers have a 'give a disabled person an interview' policy (no doubt box ticking for some government form) and so wasted her time.
Now she is getting less interviews but they are more relevant and not done just for the 'box ticking'.
It did back fire a few weeks ago when the interview was on the second floor and there was a fire drill so the lifts didn't work! The interviewer was impressed that she didn't 'tick the box' but they still didn't give her the job.
I've got a friend who had quite severe dyslexia at school, he worked exceptionally hard, got into university to study medicine and is now well on his way to becoming a registrar. I know that he got some extra time in his exams, and probably other support at university, I've no idea what support he might receive at work now, if any, or if he is compelled to declare that he has, or had dyslexia. In that context the idea that dyslexia should be a barrier to working in medicine seems pretty laughable to me. If you can pass the professional qualifications then surely you're fit to practice.
As others have said, it does seem like a catch 22 situation, presumably you can only claim discrimination if you are affected in some way, but if you are, then you should have declared it. Is the situation analogous to someone mentioning in passing that in the past they suffered from mental health difficulties? I don't know enough about dyslexia to comment really, but being a developmental disorder, it doesn't fit neatly into the obvious categories of mental or physical disability that I imagine most HR departments are more equipped to deal with.
As others have said, it does seem like a catch 22 situation, presumably you can only claim discrimination if you are affected in some way, but if you are, then you should have declared it. Is the situation analogous to someone mentioning in passing that in the past they suffered from mental health difficulties? I don't know enough about dyslexia to comment really, but being a developmental disorder, it doesn't fit neatly into the obvious categories of mental or physical disability that I imagine most HR departments are more equipped to deal with.
drivin_me_nuts said:
...Are you obliged to inform an employer of your medical conditions? Can an employer refuse to continue with your employment if you do not disclose medical health... And then use the condition itself as a reason to exclude you?
There is no general duty to disclose medical conditions to an employer. If she was specifically required to disclose the fact that she has dyslexia, her employer can argue that she should be dismissed for deceit. If her dyslexia amounts to a disability that might be more difficult to show than has been suggested. The potential breach of H&S law if her condition has not been assessed is more concerning.I agree that she should seek advice from an employment lawyer who is informed of her specific circumstances.
More generally, it is now unlawful for an employer to ask a job applicant about medical conditions and disabilities except in limited circumstances.
Edited by Zeeky on Monday 14th April 23:49
skeggysteve said:
I'm sure it not relevant to the OP but I'll post this as it may help others.
My daughter in law to be is currently doing a degree. She is dyslexic and is getting a lot of help from the university - laptop with special software to help her, tutors that understand her problem etc. etc.
But if she hadn't told them they wouldn't be able to help.
Sometimes she doesn't think she has a problem as to her it's normal - maybe the OP's relative is similar?
My wife is disabled and when filling in job applications has stopped ticking the disabled box. She found that a lot of employers have a 'give a disabled person an interview' policy (no doubt box ticking for some government form) and so wasted her time.
Now she is getting less interviews but they are more relevant and not done just for the 'box ticking'.
It did back fire a few weeks ago when the interview was on the second floor and there was a fire drill so the lifts didn't work! The interviewer was impressed that she didn't 'tick the box' but they still didn't give her the job.
The "two ticks" scheme is not not ' give a cripple an interview to tick a box ' ... the applicant still has to meet all the essential job criteria ( barring reasonable adjustments wrt moving and handling, driving etc if relevant to your protected characteristic). My daughter in law to be is currently doing a degree. She is dyslexic and is getting a lot of help from the university - laptop with special software to help her, tutors that understand her problem etc. etc.
But if she hadn't told them they wouldn't be able to help.
Sometimes she doesn't think she has a problem as to her it's normal - maybe the OP's relative is similar?
My wife is disabled and when filling in job applications has stopped ticking the disabled box. She found that a lot of employers have a 'give a disabled person an interview' policy (no doubt box ticking for some government form) and so wasted her time.
Now she is getting less interviews but they are more relevant and not done just for the 'box ticking'.
It did back fire a few weeks ago when the interview was on the second floor and there was a fire drill so the lifts didn't work! The interviewer was impressed that she didn't 'tick the box' but they still didn't give her the job.
if it's being misused then that'ds a shame but don't discount the opportunities it gives if you do meet the essential criteria - it;s far better than the traditional Remploy model of employement for people with disabilities.
Zeeky said:
There is no general duty to disclose medical conditions to an employer. If she was specifically required to disclose the fact that she has dyslexia, her employer can argue that she should be dismissed for deceit. If her dyslexia amounts to a disability that might be more difficult to show than has been suggested. The potential breach of H&S law if her condition has not been assessed is more concerning.
I agree that she should seek advice from an employment lawyer who is informed of her specific circumstances.
More generally, it is now unlawful for an employer to ask a job applicant about medical conditions and disabilities except in limited circumstances.
Unfortunately the NHS and the vastest majority of toher health sector employers as responsible employer entirely leghally do ask about applicant;s health - by virtue of a occupational health screening questionnaire . SHe will have been required to sign that the information in her application (including the OH screening questionnaire) was accurate , complete and did not omit material facts ... I agree that she should seek advice from an employment lawyer who is informed of her specific circumstances.
More generally, it is now unlawful for an employer to ask a job applicant about medical conditions and disabilities except in limited circumstances.
Edited by Zeeky on Monday 14th April 23:49
Healthare is very conscious of Occupational Health screening tdue to the likes of Allitt Shipman and Geen ...
what is not legal is for appiointing managers to ask aobut heatlh and the use of sick record as a way to exclude candidates who meet the person spec from the shortlisting pool.
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