Disability Act - Relevant Bits to Save a Man's Job

[Joe McManus]

Hi all,

Someone e-mailed me via the FAQ asking about sleep apnoea and legislation in defense of his daytime sleepiness. He's been nodding off at his desk and his supervisor has started to take notice.

I emailed him back a few links, the usual ones we pass around here. Murphy's law will have it that no sooner did he receive that, he's being called in for a disciplinary hearing due to his below-par performances.

As he fears they're not aware of the disability act and perhaps not as reasonable as he hopes (he is in fact booked in for a sleep study now) he asked me to help quote the actual relevant parts of the various links.

As I'm on a tight schedule I was hoping you guys and girls can give me a hand. I'm assuming we only have today left.

Can you help helping out?

This is what I emailed initially:

It's such an important topic for many, I will be collecting and
examining the facts over a period and post a really thorough answer to
this. Until then, I will give you some pointers that should help you out
in the meanwhile.

Basically, Sleep Apnoea is regarded as a disability and therefore
sufferers are protected by the Disability Act.

There is a good post about it on our forum here:

http://forums.cpap.co.uk/showthread.php?t=160

Here is an official government link:

http://www.opsi.gov.uk/acts/acts%201995/1995050.htm

What I'm not sure of is whether it covers undiagnosed people. I would
recommend you get diagnosed. Either via the NHS, which can take up to a
few years, or privately like so:
http://www.cpap-europe.com/screening-c-6.html At least then you have
made the first step in the direction of treatment so you can actually
function again.

Also try and do the questionnaire at www.sleep-tests.co.uk to help you determine whether it is Sleep Apnoea.

If you are at a decent sized company, the HR department should be able to dig out some more details on this Disability Act and how it applies to you. Through forum members' experiences we found that if they see you make an effort getting treated, they are mostly OK with it. In the meanwhile, by law they are required to make reasonable changes to accommodate your disability. In practical terms this could be working from home on rough days, taxi to pick you up, revised hours, allowing
nap-time etc.

Also note, there are implications for your legal ability to drive: http://forums.cpap.co.uk/showthread.php?t=121

There's more info on this on blog.cpap.co.uk as well, particularly on the DVLA part of it. The other members in the forums know a lot about his too so you may want to join and ask there too.

Let's see what we can find shall we?

[Joe McManus]

I'll start off myself...

http://www.opsi.gov.uk/acts/acts1995/ukpga_19950050_en_2#pt2-pb1-l1g4

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs—
[...]
(d) by dismissing him, or subjecting him to any other detriment.

5 Meaning of “discrimination”

(2) For the purposes of this Part, an employer also discriminates against a disabled person if—
(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.

This bit is especially relevant I think:

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)—
(a) making adjustments to premises;
(b) allocating some of the disabled person’s duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his working hours;
(e) assigning him to a different place of work;
(f) allowing him to be absent during working hours for rehabilitation, assessment or treatment;
(g) giving him, or arranging for him to be given, training;
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision.

Also important is that the employer actually knows about the disability (therefore perhaps the need to be diagnosed?):

(6) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know—


(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

Unfortunately, none of this seems to appy to companies below 20 employees:

http://www.opsi.gov.uk/acts/acts1995/ukpga_19950050_en_2#pt2-pb1-l1g7

The full details can be seen here:

http://www.opsi.gov.uk/acts/acts1995/ukpga_19950050_en_1

The document mentions the National Disability Countil, which can be reached here:

http://www.bcodp.org.uk/

And there's also the Equality and Human Rights Commission to be contacted here:

Web: http://www.equalityhumanrights.com/e...contactus.aspx
Telephone: 08457 622 633

Good details of your rights here.

Acebass' link to the Sleep Apnoea Trust is also a good one as they can give advice by phone and will have dealt with this situation many times before:

http://www.sleep-apnoea-trust.org/

Furthermore, the BSSAA has a write-up about the situation here: http://www.britishsnoring.co.uk/sleeping_on_the_job.php

Fingers crossed, that helps a few people!

[chelseauk]

Sorry Joe but this ones abit beyond me - apart from the links youve already supplied and http://www.britishsnoring.co.uk/sleeping_on_the_job.php

But a few thoughts

1)Are they members of a union ?

Ring them and get representation.

2)Often household insurance has a free legal helpline.

3) Solicitors have free clinics.

[Joe McManus]

Good points Chels though it looks at this stage to be a matter of education the employer rather than swords being drawn for legal action (maybe swords being dusted off )

[flyinpete]

Hate to add this, but my old employer who I was working for when I discovered I was suffering from OSA told me if I could not drive I would be sacked.

I asked Citizens Advice Burro about my rights and there is a list of illness that are officially classes the sufferer as disabled, and OSA was not on there. I have seen some items shown and discussed on some Sleep aponea speciallity sites, but the govenment site does not list it.

This was 4 years ago and things may have changed, if so a link to the document showing it is a recognised disability would really help us all at some time.

Peter

[flyinpete]

Did some home work and it Seems like I am well behind the times.....

Since the changes to the law in 2006, OSA Is included by the nature of the illness and its side effects.

The problem as I see it, is that when you are diagnosed with OSA and are not having treatment, you are covered. Once you start CPAP and it helps, you are not covered as you "should" be back to normal.

We have to be very careful what we want here, if we are saying that we still suffer from the effects of OSA after we are being treated with CPAP, then the DVLA may just read that as we are disabled by the effects, we are not capable of driving, and I for one DO NOT want that to happen.

So are we disabled before we are treated and non-disabled once treatment starts? If so the person who is having difficulties at work would definitely be covered buy the 2006 disability at Work act.

BUT.... If we are trying to say we suffer from OSA, there fore we are disabled; we could have a tough time getting DVLA to accept that we should be driving, without in-depth alertness checks.

Just a talking point.........



Peter

[SteveP]

The problem as I see it, is that when you are diagnosed with OSA and are not having treatment, you are covered. Once you start CPAP and it helps, you are not covered as you "should" be back to normal.

That is a good point. You are a great Devil's Advocate!

Comparisons are very difficult, but is an epileptic person disabled when under treatment? I guess yes. A blind person with a guide dog is still a disabled person, no? Am I taking that too far?

SteveP

[chelseauk]

Thats the very thing i always thought..

In that I am under treatment so i don't need any help.

Fundamentally though there is a potential for disablement - and i'd guess thats the view I'd hope would be taken - IE if and when you can't take the treatment - (perhaps the machine fails) - then you are disabled.

In the same way the DVLA say - yes you are being treated - you can drive - but you must bear you condition in mind and don't drive if you are not okay (I paraphrase terribly by the way).

[flyinpete]

I have a disabled daughter who has many problems, but none that can easily be measured to "prove" she is disabled. She is 15, epileptic, has a mental age of 1.5 and apart from the batteries in her toys going flat and getting fed she has no probles and loves life. Every few years we have to fight to have her recognised as disabled to enable us to get support.

I have a friend, who lost his legs in a bike accident, he is a registered disabled person, and for that gets a some of money from the state to assist his life. He was fitted with two new Carbon fibre blades and after some practice can now run a 6 minuet mile, and also ran the London Marathon last year......Is he still disabled?

I have a friend who is epileptic and takes medication to control the illness. He has not had a fit in 6 years and can now drive. Is he now disabled?

The disability act is a fantastic thing, and coupled to the Human rights act gives all sorts of people the right to a "normal" life. But how do you measure an effect of an illness on a person’s life.


Peter

[puffin]

Pete, defining disabled has always been a problem as there are so many ways to be disabled.

I know people who are clearly disabled who put a lot of effort in to leading a "normal" life. I whole heartedly have no problem with giving them as much help as possible, I go out of my way to do this.

But on the other hand I also know one lady would actively plays the system. She claims to have RSD which has symptoms of random pain and weakness, she has an electric wheel chair, sticks, mobility car etc. When she thinks that no one is looking she will get up and dance! Both her and her husband don't work and have not for years, she travels all over the country in a camper van, most weekends. And holidays abroad 4 times a year, currently in the USA for 3 weeks. Mention you have a medical problem, IE OSA and she starts to get the same problem after she has looked it up, bullies the Doctor for treatment and seeks financial help!

Because disability is so difficult to define, it will always be easy to claim something or other. I suspect that "everyone" has some form of disability, most of us just get on with life the best we can. Its only when we have to define our problems for whatever reason, be it work or to get help with the problem, do we encounter resistance.

[Joe McManus]

A blind person with a guide dog is still a disabled person, no? Am I taking that too far?

No, I personally think you are quite right. An OSA person wouldn't be disabled anymore when they do a sleep study and no significant apnoea events show anymore. That's quite different from someone with OSA on CPAP.

A person with two legs missing who is in a wheelchair may be fairly mobile, but take away that wheelchair and you're back at square one.

Hence me saying about educating the employer. They need to know that you will soon be getting good therapy which will make the world of difference. But they need to know that there will be bad days during which there still may be need for the job to adapt according to the symptoms. It could be equipment failure causing a bad night or a cold causing you to be blocked up and hardly getting any sleep. It would be nice to then have an understanding relationship with the boss so perhaps you are allowed to come in a bit later or cut the day short, or work from home.

[acebass]

The problem as I see it, is that when you are diagnosed with OSA and are not having treatment, you are covered. Once you start CPAP and it helps, you are not covered as you "should" be back to normal.

As you still have the underlying condition, you should still be covered...

We have to be very careful what we want here, if we are saying that we still suffer from the effects of OSA after we are being treated with CPAP, then the DVLA may just read that as we are disabled by the effects, we are not capable of driving, and I for one DO NOT want that to happen.

Many Disabled people are still capable of driving normally.....

So are we disabled before we are treated and non-disabled once treatment starts? If so the person who is having difficulties at work would definitely be covered buy the 2006 disability at Work act.

We do not have a "recognised" Disability, but the effects of OSA are covered by the DDA because by their very nature of reducing one's ability to concentrate on a task and being able to stay awake whilst performing them, they are disabling....

BUT.... If we are trying to say we suffer from OSA, there fore we are disabled; we could have a tough time getting DVLA to accept that we should be driving, without in-depth alertness checks.

A possibly contentious point, but it could show that a CPAP treated OSA has better reaction times and alertness levels than Mr (or Mrs) Average. I know that (on most occaisions) I sleep better than a lot of my colleagues who are not OSA sufferers and they travel further to work than I in a much sleepier state than I, so who is the safer.....

More points to ponder.........

[paulbooth6]

OSA and the DDA

I was dismissed from my job for having OSA. Has anyone successfully had OSA acknowledged as a disability, has anyone won a case for breach of DDA with OSA, has anyone had OSA recognised through the DDA and if so specifically which part.

I would appreciate any assistance on this