Michelle from the MS community: Once I’ve approached my employer and explained the situation, if I feel that they’re not being very supportive, if I feel they’re not willing to make any kind of reasonable adjustments, what kind of recourse do I have?
Rebecca Armstrong, HR consultant: Okay, so first thing is to really understand why they’re not willing to make those adjustments. So is there a legitimate reason why it wouldn’t be feasible and is there a compromise or a different adjustment that could be made. But ultimately, if you’re not getting the support then you would go to the grievance procedure. So every organisation should have a grievance procedure, and if they don’t, it would default to the ACAS code of conduct, so the ACAS grievance procedure, effectively. And what that grievance procedure effectively is, is a way of putting formally the complaint that you have. So my advice would be to really think about the facts, so to really think about what have you asked for, what was the response, what was the timescales, all of those things, and to try not to come at it from emotion, that can be quite hard. But really it’s about looking at the facts and asking the employer to respond formally to that situation. Now that might be that your grievance is about how your manager’s handled the situation as well as what the outcome of the situation was. What would then generally happen is there would be an investigation, which can sound quite scary, but it’s not. Really, all that is, is the employer would ask somebody independent, so either from within the organisation or possibly externally, to look at what happened and to come to a conclusion as to whether the person acted fairly, whether the outcome was fair, whether there should have been a different outcome. So that would be your first thing. If that grievance, again, doesn’t get the outcome that you think is reasonable or fair, then you would have a legal right of appeal to that outcome, so you would, within five to seven days of receiving that letter, have the opportunity to once again put your case forward, to say I’m not happy with that outcome and these are the reasons why. If that doesn’t get you anywhere and you still feel like there’s discrimination happening and you still feel like there’s a problem there, then the next course of action would be ACAS. So ACAS have a helpline and they are very, very good. So you would ring ACAS and you would ask them to enter what’s known as pre-conciliation. So what that effectively says is, they would contact your employer and they would start to negotiate what needs to happen, ie, the adjustment or perhaps it might be that you feel you can longer be employed by that employer, so you leave, so then you’d be looking at constructive dismissal and discrimination based case. If you were then to go to tribunal, ACAS would do the first stage of that in terms of conciliation and give you a reference number to allow you to then submit a case into a tribunal service. So that’s really the legal recourse. There’s other things you can do. So it’s often worth speaking to your MS nurse or your neurologist and have them support your request for reasonable adjustments or perhaps they can write a letter or they can do a report to sort of back up the reasons why it’s a requirement. The other thing you can ask for is a referral to occupational health. So occupational health would be engaged by your employer and I describe them as a translation service. So you’ve got your MS team who are talking in very medical jargon, and you’ve got your employer who doesn’t really understand what MS is and what the impact is. Occupational health can be that bridge. So you would have a consultation with them at your employer’s expense. They would then provide a report to your employer about what adjustments might be reasonable, given the situation. So they effectively translate your medical condition into the work context. And that can be quite a useful tool, because they can make recommendations of adjustment. Your employer doesn’t have to take them. In all honesty they’re not legally bound by them, but why would you not take that if you’ve invested in doing that. So there are quite a few routes. I would always say, as hard as it is, and I get how hard it is, is to try to take the emotion out first and foremost, boil it down to the facts and try to deal with it internally, informally as much as possible. But if you can’t, then you do have your formal internal processes and then your external tribunal case.
Michelle: Okay. And does that change hugely – obviously you said that reasonable adjustments have to take into account what’s reasonable for that employer, and I imagine what’s reasonable for a very large company versus a two, three-man band, changes vastly. So at what point does that expectation become unreasonable for an employer, or for an employee?
Rebecca Armstrong: It really depends absolutely on the circumstances of the organisation and what is feasible. The problem, or the challenge with employment law is the term ‘reasonable’ is so woolly. And I guess the other side of that is, you know, disability as a general topic is so vast that it would be nigh on impossible to create that list of, you know, if this happens, this is the adjustment you must give, so I guess it has to be. So every case is different, which sounds like such a cop-out, but that is literally what it would be viewed as in court as, is it reasonable. What you’re really looking for is can this person do their job to a reasonable standard, ie, can they make a good contribution to this business. Which might be less than somebody else, but it’s still at a standard that means that they’re adding value and they’re delivering for the business. So it’s looking at can they continue to do the job to a reasonable standard and what do we need to put in place to enable that to happen. And most adjustments, it has to be said, don’t cost money. You know, some might, but a lot of them might be about flexibility of hours, it might be about increased rest breaks. You know, things like, if you’re in a busy office and it’s a warm environment, sitting somebody where there’s more ventilation, there’s a window, they get air, you know, closer to the toilet if they have urgency around needing to go to the toilet, actually allowing somebody to sit closer to the toilet rather than having to go upstairs or whatever. You know, there’s a lot of adjustments that are just really easy…
Michelle: Common sense adjustments.
Rebecca Armstrong: Absolutely. And the employer might not always think of all of them, which is why I always go back to the very best adviser of what adjustments to make is the person who has the condition. And I say that to employers, the best person to ask what’s needed is the person’s point of view. Ask them and then consider how you can accept and accommodate their requests.