One thing we can probably all agree with is that until you sit in the consultants office and are told that you have MS it’s impossible to imagine what it is like; add in the complexity and variability of the disease and it makes it very difficult for someone without MS to understand MS. Some employers simply have no idea what MS is let alone what it is like. In my experience there are three types of employer; the good, the bad and the ugly. The good ones do whatever they need to do to support and enable their employees to do a great job (they do exist!), the bad one are directly discriminatory and then there is the ugly, yes they get it wrong but through naivety, whilst this is not acceptable it does mean that they are prepared to listen and change.
The best advice I can give anyone with MS is to know your employment rights (UK). There is lots of support available to you through charities, ACAS, Unions or groups such the one I established on Facebook (MS&Work) but ultimately the best way is to have an understanding of what the law says and how it applies to you. Here are some myths and facts to help you:
- Fact: The Equality Act 2010 states that you cannot be treated at detriment based on having a protected characteristic which includes disability. MS is a named condition within the act. If you are treated at detriment either directly or indirectly then this is potentially discrimination.
- Myth: You have no employment rights until you have 2 years service. The 2 years qualifying service relates to The Employment Rights Act 1996 and specifically to Unfair or Constructive Dismissal. The Equality Act 2010 applies before you are even employed by a company which means if you are treated at detriment based on having MS (including being dismissed as a direct result of the condition) you can take a legal case of discrimination to tribunal.
- Fact: You are entitled to ‘reasonable adjustments’ to enable you to do your job. There is no set list of what this might include, the options are endless and are specific to you and your employer. The size of the company, role you do, your condition and health and safety are all taken into consideration when making an adjustment. The adjustment could be a temporary change (for example a phased return or during a relapse) or a permanent change to your work.
- Myth: You cannot be dismissed if you have a disability. You can still be dismissed based on your disability however it is a very last resort. An employer still has the right to expect a reasonable standard of work and output following an adjustment. They also have a duty of care to keep you safe at work. If you are not able to meet the standard (which may have been reasonably adjusted) or your disability is a risk that cannot be adjusted, then they could consider dismissal on the grounds of capability or medical retirement.
- Fact; an employer cannot force you to use holidays for medical appointment. For many of us regular appointments for treatment are necessary. Your employer cannot insist that you use holidays for these as this would mean you have fewer holidays then a non-disabled person and put you at detriment. Your employer can however opt not to pay you for these (subject to your contract and their policies) which means that many people prefer to use holidays, the point however is you cannot be forced to. It’s not unreasonable for an employer to ask if your appointment can be made for a day off or out of work (it might be beneficial for both of you) but again they cannot insist on this, hospital appointments often cannot be changed.
Top three tips:
- If you think you are being treated unfairly keep a log of everything. Keep copies of emails and log all conversations. Ensure you keep this factual; record specifically what was said and what happened. Try to minimise emotion as much as you can – tribunals work mainly on the facts.
- Be open to helping your employer understand. If they get it wrong assess whether it was through naivety or discrimination. Think about how much you knew about MS before you were diagnosed and help educate. Use resources such as leaflets and booklets from MS-UK to help.
- If you are being discriminated act in a timely manner, it is easier to ‘nip things in the bud’ than let them escalate and become stressful, Remember stress is a major factor in MS relapses and progression, often a simple conversation can remove it quickly. Put your concerns (with specifics) in writing under your company grievance process. In a tribunal a judge will consider what opportunity the company has had to do the right thing or to put right what’s wrong.
