Many patients have asked us questions recently about your rights at work - especially for patients feeling the pressure to return to the workplace when they don't believe it is safe for them. Carolyn Miller is an employment lawyer who specialises in dealing with discrimination in the workplace, and she joined us to give us a summary of your rights, explain how to tell if you're facing discrimination, and what you can do about it. The information below is taken from our live discussion with Carolyn in December 2020.

Carolyn has been an employment lawyer for twenty years with a speciality and interest in discrimination. She is passionate about getting people successfully back to work on a return that works for both the employee and the employer. 

What is discrimination at work?

The Equality act of 2010 covers protected characteristics like age, sex and race. Disability is one of these protected characteristics, which means your employer cannot discriminate against you on the basis of your disability.

Is aplastic anaemia a disability?

Not always. Some diseases, like cancer are automatically covered as a disability under the act. But a diagnosis of aplastic anaemia does not give you automatically the status of "disability". It depends on the severity - and sometimes the side effects from your condition or the treatment may automatically give you coverage.

However, if you feel you are being discriminated against on the basis of your aplastic anaemia, Carolyn recommends you raise your grievance as a claim of discrimination based on disability.

What is discrimination?

There are different types of discrimination that you can experience in the workplace:

Direct discrimination is the one most people are familiar with "I was treated differently as a result of this illness". If someone made you redundant because you had been diagnosed with aplastic anaemia, or treated you differently because of it, this would be direct discrimination.

Indirect discrimination would apply if an employer puts in place a provision, criterion or practice that makes it more difficult for someone with a disability to to their job than a non-disabled person. For example, if your employer introduced a rule that "everyone has to be in the office 9am-5pm" that may put you at a disadvantage if you have to take medication or attend hospital appointments or simply cannot work full time hours as a result of your condition. So you would be discriminated against, even if the action was not specifically targeted at you.

Harassment 
If you are constantly reminded of your illness or it is used to harass you, this would be a kind of discrimination. For example, if your employer was constantly telling you that your illness was inconveniencing them, or it was brought up regularly and this made you feel uncomfortable.

Victimisation
If you raise a grievance or concern at work, and afterwards you're treated in a different way because of it - this would count as victimisation. This would also count if you supported someone else's claim of discrimination, and were treated differently afterwards. It would also be victimisation discrimination if you were denied a reference after you left a job because you were perceived as "making trouble" while you were there for raising issues around other kids of discrimination.

Discrimination arising from... 
This applies if you suffer as a result of something that's connected with your disability. For example, a client of Carolyn's who was partially sighted had a very exact routine for commuting into work which helped them to get the right bus and arrive safely. Their employer wanted to change their work location, causing them great difficulty. The client was able to successfully claim that this was discrimination arising from their disability.

What should you do if you feel you are being discriminated against?

Often people can feel like they don't want to raise a grievance formally at work for fear of rocking the boat - and in many cases, an informal conversation with your employer can put things right and stop you being put in a position that you're uncomfortable with. Speak to your HR manager to request reasonable adjustments and outline what is and is not reasonable and possible for you, while keeping yourself safe and well.

If the conversation does not go as well as you hoped, your next step should be to raise a grievance formally. If this does not achieve the required outcome, you then have the option of bringing your case to an employment tribunal.

It is a good idea to keep all your communications in email, so you have a record of all the discussions you are having. Your emails will provide a written record of any reasonable adjustments you’re agreeing and how they enable you to do your job. If you have a conversation on the phone or in person, you can follow up with a confirmation email afterwards, covering the main points of what you have agreed.

What if I'm living with someone with aplastic anaemia and shielding to keep them safe?

Carers have the right to ask for reasonable adjustments as well. For example, you can say to your employer "I can do my job from home, please can I continue to do so for the time being because my family member is shielding.” Your employer cannot legally discriminate against you as a result of your "association" (- that's the technical term for your relationship) with a disabled person.

You do not need to have a legal definition of "carer" to fall into this category. If you are living with someone with aplastic anaemia, or regularly caring for them, you can be reasonably defined as a carer, even if you do not receive any benefits for being an official carer.

Avoiding conflict with your employer

If you're facing a period of absence from work, there are things you can do to avoid future conflict. Carolyn describes how the most bitter disputes often arise as a result of people not communicating.

If you are able to, it is a good idea to keep in touch with your workplace. Check emails occasionally while you are away, and update them on your progress.

Negotiating a way to stay involved at work, when you are feeling able to, can be better for everyone. For example, Carolyn describes how in the past, it was usual for cancer patients to take a full year or more away from work until their treatment was complete. Nowadays, many people return to work between bouts of chemotherapy - which keeps them up to speed, maintains good relationships with colleagues, and also avoids common issues like anxiety and loss of confidence which can make returning to work after a long period away much more difficult for people.

Carolyn recommends always being open with your employer about your health, and realistic about when you'll return and what you'll be capable of. This will help you negotiate reasonable adjustments to your role and working environment - and useful things like a phased return after a leave of absence.

Reasonable adjustments

Your employer has a duty to consider (not necessarily agree to) reasonable adjustments to your role and working environment that will help you to do your job within the boundaries of your disability. Often these reasonable adjustments are fantastic and can work really well for individuals and employers - and when they work well it's usually because there has been good communication between the employee and their line manger about what will enable that person to continue to do their job well and safely.

Working from home is a reasonable adjustment for many who are shielding. Particularly if you have been performing your role well from home during the months of Covid19 related restrictions this year, it would be very difficult for your employer to justify not allowing you to work from home for a longer period of time.

Good to know

Nothing trumps discrimination – even if it says in your employment contract that you have to be in the office for 3 days a week – that's not relevant if forcing you to commute would put you in danger because you need to be shielding as a result of your illness. Employers will sometimes point to your contract as if it invalidates your grievance, so this can be important to know!

There is no minimum employment length for a claim of discrimination - If you raise a claim of unfair dismissal, you need to have been working for the company for two years. Because of this, people often assume that's the same for a claim of discrimination. In fact, you have the right not to be discriminated against from day one of your employment.

There is a deadline to make a formal claim
If you have to take your claim to an employment tribunal, than you have to raise the claim within three months minus one day of the last act of discrimination. It’s quite a tight timescale to get your paperwork in, especially if you have been through a grievance process already.