Friday, 2 October 2015
I am currently helping a young man with Aspergers syndrome.
He doesn't like to talk about his condition, which is fair enough. He didn't think it would effect his cleaning job and saw no reason to tell anyone about it.
He's been sacked for "gross misconduct". Witnesses say they saw this young man behaving in a "threatening or aggressive way".
At the dismissal hearing, I made the following points:
* The young man has a condition covered under The Equality Act 2010
* This incident was an autistic related "meltdown" following changes to normal workplace routine.
* There was no misconduct, though I appreciate why somebody may have misunderstood what actually happened.
* A colleague had been taunting / teasing this young man in the week leading up to the incident. This side of the story did not feature in the employers investigation.
It was clear that the employer had already decided what it was going to do, and seemed very frustrated that I was making these and several other unexpected points in mitigation.
I was told it was "too late now" to be telling them about any medical conditions. I disagreed. I pointed out they have a legal duty of care now that we have made them aware. I urged a medical referral.
This resulted in a long adjournment as the person actually calling the shots was consulted via telephone.
I was then told again that it was too late. "Company HR & legal both say you can't leave something like this until you are dismissed before you bring it up!"
The employer went on the attack, seeking to pressure this young man with aggressive questioning. Thank goodness I was there to stop them.
Again, I pointed out that he hadn't been dismissed yet (!). My view was that so long as a worker reports a medical condition covered under the Act whilst still in employment it absolutely is not too late to bring up.
There is little worse in my role than witnessing an injustice before your eyes. The sacking still happened. For the next three days, I had a horrible sick feeling in the pit of my stomach.
I could see it all in the eyes of the senior manager. "FFS Rick, he's only a cleaner, we never normally have this trouble, jeez we've been here two hours and we were expecting a ten minute meeting, god you are a pain in the ****"
Within this factory environment, our member LOVED this job. And as anyone who cares for somebody on the Autistic Spectrum will tell you, environment is massively important. It can be very difficult to find a workplace with the right sights, people and smells to make it comfortable when you are on the Spectrum. So this wasn't a sacking, it was a hammer blow.
I immediately rang Thompsons, the Unions Solicitors. I was relieved to be told I had said the right things. It was re-assuring to hear that yes I was correct - our member had made the employer aware of his Autism whilst still in employment meaning it was clearly discriminatory for the employer to refuse to take this information into account.
We have appealed the decision on the grounds that our member has been directly discriminated against on grounds of disability.
Because workers are protected under law from discrimination from day one in any job, this means that Unite will be able to support this member at Tribunal. The employer has put into writing that it does not believe it needs to take our members Aspergers Syndrome into consideration. This will, I suspect, prove to be very helpful.
Unless you are in a Union, it costs upwards of £1200 upfront to get your case to a Tribunal. So non-union cleaners never stand a chance, whatever the issue. I am very much hoping that this employer will now start to take to take the issue of terminating somebody's livelihood rather more seriously....
We had the appeal yesterday. The employer demanded proof from his man he was a Union member. "I'm in the room - there's your proof", I replied.
Then they wanted to know how long he had been a union member for. (Most unions have a "qualifying period" of membership before you get full legal back up).
Q. What employer wants to know how long you have been a union member?
A. One that knows it has broken the law and has been caught with it's pants down!
We've been told it may take a few weeks for them to decide the outcome. In the meantime, a huge amount of paperwork/legal preparation is being done by myself and the Unions solicitors. Whatever it is that they come back with, we will be ready.