Legal Aspects: DF Legal LLP

Whether it is a newly diagnosed condition or one that has been going on for some time, many people with Fibromyalgia have employment issues if they are working. It does not matter if the condition has not been given a name it is the effects which are considered. Under what was the Disability Discrimination Act 1995 ( now the Equality Act 2010), if the symptoms are bad enough to be considered a disability, you may have employment rights and protection. Your employer may have to make reasonable adjustments to the way you work e.g shorter hours/ orthopaedic chair/ not travel so far etc so that you can keep working if you wish.
You may also have rights not to be treated less favourably. This may for example include not being disciplined due to symptoms of Fibromyalgia which effect your work performance and not being dismissed because of the condition. See FAQs for more details.

If you consider you may have an issue with the way you are being treated at work and think you have been discriminated against, or indeed that you have been disciplined or dismissed in connection with the condition then please contact Clare Primett as below with your contact details and /or complete the enquiry form and e-mail.

Please note as with all legal cases there are time limits so please do not delay in obtaining initial advice so you are not out of time.

DF Legal LLP is a firm of solicitors with offices in Ledbury, Herefordshire and Tewkesbury, Gloucestershire with 6 Partners. The firm specialises in a number of areas, namely, Employment Law, Conveyancing, Family, Litigation, Wills & Probate, Commercial Law, Motorsport Law, and Immigration.

FAQs

What is a disability? Does Fibromyalgia constitute a disability?

Under s.6 of the Equality Act 2010 a person has a disability if he or she has a "physical or mental impairment" which has a "substantial and long-term adverse effect on his or her ability to carry out normal day to day activities". Suffering from Fibromyalgia has been held to be a disability under the Equality Act according to case history (see case histories) but each case will depend on the particular facts of that case. The time at which the potential disability is assessed by the tribunal, is the date of the alleged discriminatory act.

What is Physical or Mental impairment?

There are no definitions as to what a physical or mental impairment is. Fibromyalgia sufferers could have both, the chronic pain and its effects could constitute a physical impairment, while depression and stress could be mental impairments. The question is whether the impairment has an adverse effect on the person's normal day to day activities, if not then it will not be deemed a disability. Appendix 1 of the EHRC's Employment Code of Practice states "There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause."

How do you determine what a substantial adverse effect is?

Fibromyalgia is a progressive condition, there are ways to manage it, however the question is how far can someone reasonably be expected to modify their behaviour to reduce the effects of the impairment, on their normal day-to-day activities? Fibromyalgia sufferers may be able to carry out normal day to day activities however Government Guidance suggests accounts of what a person avoids doing for example, due to pain, fatigue should be taken into account. The focus should be on what a person cannot do, rather than what they can do to determine if the impairment has a substantial adverse effect. Environmental factors may need to be taken into account; temperatures and time of day may exacerbate the symptoms of fibromyalgia. The EAT gave an explanation of the requirement in Goodwin v Patent Office [1999]

What are normal day to day activities?

Previously under the Disability Discrimination Act, a person's disability had to affect one or more specified capabilities, which there was a list of. This no longer exists under the Equality Act.
What is normal? – How far an activity is normal to a large number of people should be taken into account. Normal should be given its ordinary and everyday meaning. Day to day activities are activities which are done on a daily or regular basis. The Government's guidance has given examples of this as: shopping, reading, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks etc.

Is there a definition of what is long term effect?

The substantial adverse effect must be long term. Long term is defined as having lasted for at least 12 months, is likely to last for 12 months or is likely to last for the rest of the person's life.

I am still in employment and think I may have a claim what should I do?

Seek advice from an experienced legal adviser in this area. You may have claims under the Equality Act 2010. If you are still in employment your employer has a duty to make reasonable adjustments so you can continue working if you are deemed to have a disability. Your employer also has a duty not to treat you less favourably. Examples with Fibromyalgia may include disciplining you due to for example poor performance/ or a bad sickness record. This could be discrimination.

My Employer does not know of my problems does he still have duties to make adjustments?

A duty to make adjustments does not arise until the employer knows or ought reasonably to have known that you are disabled. There is not an explicit duty on employers to enquire, however the EHRC's Code of Practice suggests that an employer must do all he can be reasonably expected to do to find out if this is the case. Knowledge held for example by Occupation Health or HR may be imputed to the employer.

I have been forced to stop working- can I still claim?

If you have been forced to leave your employment or dismissed due to your sickness and ill health due to the symptoms of Fibromyalgia then you may have a claim for direct discrimination/unfavourable treatment under the Equality Act. The time to claim will last for 3 months from the last act of discrimination e.g the date you were dismissed or treated unfavourably. If you have not made a claim within 3 months of that date you may be out of time. It is possibly to ask for an extension under the just and equitable rule but it is NOT automatic. You are advised to seek legal advice as soon as possible otherwise you may lose your employment rights and any claim for compensation.

I think I have a claim but I do not have the finances to bring this?

This can be a problem with employment claims. Even if you win your claim you are not likely to recover your costs of making that claim. It is unlikely also that you will get any form of legal assistance or help with employment matters.
The most common source of funding people have is on their home contents insurance. Check this and see if it covers employee disputes. Many people are surprised to find that they have this cover. It is also possibly but less likely that motor insurance policies are extended to cover work disputes also.

I have contacted my Home Insurance Policy Providers and they will not let me use a solicitor of my choice, can they do this?

This is often a problem especially if you want a specific solicitor because of their particular expertise or because they are local. The insurance Company often want you to use their panel solicitors. It is however a right in law that you can choose and use the solicitor of your choice. Often the insurance company just have to be reminded of this.

Enquiry Form

If you feel you may have a claim you can download our enquiry form, complete it as fully as you can, then email it to

Alternatively you can print the form and post it to Clare Primett at the address below.

Contact:
Clare Primett Solicitor
DF Legal LLP
Elizabeth Hall
13 The Southend
Ledbury
Herefordshire
HR8 2EY
Tel: 01531 633222 or 01684 850750
E-mail

Return to Legal Aspects