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Date: 15/05/11

Settled Up

Regular viewers over the past year or so may remember my mentioning an issue regarding my working life which I was repeatedly unable to go into any detail about.

Here's a little (!) story.

Dramatis Personae

(Posh for "them what's in it")

Note: The sets of initials by which the four protagonists are herewith identified were all generated randomly - except for one.

Our story begins in the early part of 2010. Our Hero, PBI, lives in a village nearly four miles from his place of work. He cannot drive, and so is dependent upon public transport. The village is about nine hundred feet above sea level, and about five hundred feet above office level.

In the opening week of the year, a heavy snowfall exacerbated by the local authority failing to treat the roads caused the village in which Our Hero dwells to be cut off from the rest of the planet - at least as far as public transport is concerned. PBI - whose health and well-being is regarded as important, at least by PBI - phones the office to advise them that he won't be in that day.

Overnight, the temperatures plunge well below zero and the slush and ice from the previous day turn into one huge skating rink. No gritting of the roads until some time after sun-up means that there is again no public transport until early afternoon; by which time PBI - who works part-time - would have been getting ready to leave work anyway. So he again phones in absent.

On the third day of The Big Freeze™ the situation is a little better, in that the buses manage to reach the bottom end of the village, but not until 09:00. PBI therefore arrives in work well over an hour late, but at least - or so he thinks - he'll be appreciated for his hardiness.

Over the subsequent weekend there is a further heavy fall of snow and, due to the ongoing neglect of the roads by the local authority, there is once again no public transport. One more time, PBI has to call in to say that he can't come to work.

The employer (hereinafter referred to as 'The Employer') has special procedures for such eventualities, and PBI therefore seeks to avail himself of them. He applies to IBM (his manager) for special leave for the three days of his enforced absence, and for the hour and a half he lost on the Third Day.

After much prayer and fasting on the part of the high priestesses of the Cult Of Management, it is decreed that Our Hero can indeed be compensated for the first day that he lost, but only for that day and not for the others.

Somewhat baffled and a touch peeved, PBI invokes the Disability Discrimination Act (DDA), as he is fully entitled to do. His medical condition means - amongst other things - that extreme cold to the feet (such as would be encountered whilst attempting to walk nearly four miles along roads with inches of snow on them, with the added prospect of having to do the same - and uphill - to get home again) is seriously to be avoided.

The Employer has what it calls 'The Four-Mile Rule', whereby members of staff living within four miles of an office are expected to get to said office come hell or high water - or heavy snow, as in this case. Or, otherwise, if they can walk to work (nothing about walking from work) in one hour or less.

Our particular division of The Employer issues special guidance at the beginning of the second week referred to above which clarifies that the 'four miles/one hour' rule only applies in good weather and to people in good health.

So far, so sensible. Except that that is not the way IBM sees it, nor FMC (IBM's manager). When, upon approaching FMC as to why the second day's absence because of the snow had not been compensated for, PBI is met with the response that the second day constituted "the same event" as the first day, and that he would have been expected to have "made arrangements" to get himself into work that day, he asks - rather sardonically - whether he should have walked through the snow the previous day and booked himself a room at the hotel adjacent to the office. It is made clear to him by facial expression if not by words that, yes, that is the sort of thing he would be expected to do. All this amidst constant claims that, "We're running a business!", which is, of course, what Ian Dury would have called "rampant bollo".

Increasingly baffled and narked by all this, PBI consults his union rep. After taking advice, she tells him to resubmit his claim, which he duly does. This results in PBI being given half a day's credit for the third day, on the grounds that he should have been prepared to come in in early afternoon and still work his normal number of hours (even though this would have meant he would have still been at work at 19:30 that night, with temperatures falling and the likelihood of having to walk home).

At this point, FMC presents PBI with something else which is a completely new concept to him. Because he has chosen to work roughly 08:00 to 14:00, those are his 'preferred hours' (something about which all the available guidance on The Employer's intranet is silent) and he has to live with any loss if he couldn't come in during those hours. PBI could hear Dury rotating in his grave at this point.

PBI ends up losing nearly ten and a half hours time because of all this.

Then, as if his sense of disillusionment with the rather casual and dismissive way in which someone who had given nearly twenty years of hard work to 'The Business™' (and who is covered by the DDA to boot) is being treated were not enough, another matter arises.

As previously stated, PBI's medical condition qualifies him for the protection of the DDA. What it also qualifies him for is having to have regular reviews of his condition. These were previously undertaken at the local hospital (which is only a couple of hundred yards from the office), but in recent times these have been delegated to a practice nurse at his doctors' surgery.

The appointments for these reviews can only take place between 08:30 and about 11:00 in the morning, as these are the only times when the practice nurse who specialises in his condition is available. PBI always tries to get the earliest possible appointment so that he can call in on his way to work (the surgery in question being about halfway between his home and the office), and so minimise the effects upon The Business™.

The custom for as long as he can remember is that his manager will allow him to claim back the time he loses by attending these appointments. All he does is complete a form requesting this and his manager will grant him the credit of time.

This custom continues into 2010, when PBI has an appointment in early February. At this time, the nurse (in consultation with the doctor) withdraws one of the medications that PBI had been taking to control his blood pressure. The doctor agrees this on the condition that PBI's blood pressure needs to be monitored closely over the coming months. This in turn means that - rather than having an appointment every six months - he would need to attend an appointment every four weeks over the first half of the year. The next appointment is duly set for four weeks later, again at 08:30.

When PBI reports for work that morning and makes his customary application to claim the time back, IBM (who, you may recall, is his manager) grants it without demur.

PBI then tells her that he has a further appointment a month later. This turns out to be a mistake. Three weeks later, IBM calls him in and informs him that he would be able to claim the time back for the next appointment (due the following week), but all future appointments would have to be taken in his own time, as per IBM's reading of The Employer's official guidance. PBI points out that this is counter to long-etsablished practice and that - as he is covered by the DDA anyway - he is fully entitled to claim the time back as the guidance fails to refer to that coverage. IBM insists that IBM's reading of the guidelines is correct, that PBI should arrange all future appointments outside of his working hours (despite IBM being told very clearly that this is not possible), and that as the guidance doesn't refer to the DDA, IBM isn't bound by it.

A week later, PBI has his next scheduled appointment and claims the time back, which is duly given. However, the claim for his next appointment - four weeks further on again - is rejected as threatened by IBM some weeks before. The same pattern follows with the next two appointments, which takes PBI through to the end of May having lost over five hours to the appointments over the preceding two months. IBM continues to maintain that IBM is following 'the guidelines' and refuses to amend the previous position.

IBM's position throughout is based on a set of incorrect assumptions and statements. Firstly that PBI couldn't claim the time back - not even under the provisions for Disability Adjustment Leave - because he works flex-time; the DDA makes no distinction on the point - you either are covered by it or you aren't. Secondly, that simply allowing him to attend the appointments at all constitutes a 'reasonable adjustment' within the terms of the Act; this is quite clearly nonsense, because even within an employer which has developed an unhealthy obsession with denying staff reasonable provisions, there could be very few occasions where the employer could justifiably prevent anyone from simply attending an appointment. Thirdly, that the appointments were 'routine', and not related to PBI's disability; this is bollocks on stilts and PBI had told her so. And finally, that the employer is only required to grant unpaid time off; PBI once again refers IBM to the DDA, but to no avail, even pointing out that if he was being told to take the appointments in his own time, then IBM wasn't allowing him unpaid time off either.

By this time, one of PBI's colleagues has suggested that he ask to be referred for a review with The Employer's 'health advice provider' (a large, multi-headed outsourcing company). Before he can decide on this, however, IBM decides to refer him to them anyway.

So it is that on a dull day in mid-July, PBI clambers aboard a train to travel the sixty miles to a large city in order to attend an interview with a nurse. PBI actually does find the hour-long discussion fruitful, in that all bases are covered regarding the grief that IBM and FMC had been giving him for the previous six months; the person he talks to is extremely sympathetic and fully agrees with PBI that he was perfectly entitled to claim the time back under the DDA (moreover expressing astonishment that management thought for one moment that he wasn't). The nurse would state this in the written report which he would provide within a few days to both PBI and IBM.

PBI leaves that city in the most positive mood he has experienced for some time (even taking into account the fact that he gets lost trying to find his way back to the station and ends up getting home about an hour later than he'd intended). Indeed, when the report arrives on his doormat a short time later, it does indeed make the same points that both he and his union rep have been making to IBM for months. At last, he thinks, I'm getting somewhere with this. IBM won't be able to brush this off.

Famous last words. It is about three weeks before he can get IBM to go through the report with him. When the discussion does take place, IBM dismisses what the occupational health nurse had stated in his report simply by saying that the health advice provider "didn't understand The Employer's procedures". And that is that: nothing changes, IBM still maintains the management position and even goes so far as to imply that PBI has fraudulently reported his hours for that day, a notion of which PBI is very quick to disabuse IBM.

The frustration that PBI is experiencing as a result of IBM and FMC simply not taking any notice of what he and other authoritative sources are telling them begins to take its toll on his well-being. On at least two nights in late August, he lies awake in bed late at night terrified that he is going to die in his sleep.

Another review with the practice nurse comes along in early September, and again PBI's claim for the time lost is refused by IBM. PBI then speaks to FMC (who is, let it be recalled, IBM's manager). FMC takes the same position as IBM, saying that the whole matter has been discussed between IBM, FMC and JNB (FMC's manager) and that that is the line they had decided to take.

PBI then requests a 'clear-the-air' meeting between himself, his union rep, IBM and FMC. FMC declines this on the basis that they have already made their decision and don't intend changing it. Blanked.

An attempt by PBI to engage the department's own mediation service then fails because said service claims they can't get involved in anything regarding procedures or management decisions. Another dead end.

PBI then decides to call the employer's HR Service Desk, and speaks to a delightfully forthright Scottish lassie who says that, as far as she is concerned, if The Employer's health advice provider has stated that he is entitled to claim the lost time, then he most definitely is entitled to claim it. She suggests that he e-mail the Service Desk with details so that he can have a written response which he can show to IBM (and anyone else who needs to see it).

IBM duly does this, relieved to find someone within The Employer who could confirm that he was in the right. Unfortunately, his e-mail goes to someone completely different to the person he had been speaking to, and he receives a completely anodyne reply pointing him to the same 'guidance' that IBM has been using. Back to square one.

Thoroughly pigged off by this time, PBI decides that - all reason having failed to produce the correct result - an escalation is called for. After discussions with his union rep, he decides to avail himself of The Employer's grievance procedure and (with the rep's help) draws up the formal letter. In it, he sets out the basis of his grievance: namely, the failure of two layers of management to operate the provisions of 'reasonable adjustment' under the terms of the Disability Discrimination Act, and that this discriminatory behaviour covered both the issue of the medical appointments and the absences due to bad weather; the total failure to accept that statute law over-rides the employer's own guidelines; and the inconsistency in suddenly denying claims for later appointments having allowed them previously and in allowing other members of staff in an identical position to continue claiming the time back.

As his complaint is against both IBM and FMC, he has to submit the grievance case to FMC's manager, the aforementioned JNB, which he duly does. According to The Employer's own guidelines, JNB then has thirty-five calendar days to resolve the matter and reach a decision.

Day thirty five duly comes - and goes - without any indication that JNB is anywhere near a conclusion. This creates a small dilemma for PBI. The next possible step for him would be to submit a formal claim of discrimination to an Employment Tribunal (ET). However, there's a time limit on such claims; they have to be made within three months of the alleged act of discrimination (or the most recent act if there has been more than one). It's a big step, because this is where lawyers can get involved.

After some thought and discussion PBI - suspecting very strongly that the grievance case is not likely to give him any closure on the matter - decides to submit a claim. With advice from the union rep (who, in turn, receives advice from a more experienced rep and from a lecturer who is giving a course on employment law at the local Uni which the rep is taking), he submits his formal claim at the beginning of December.

In mid-December, JNB decides to hold a 'fact-finding meeting' regarding the grievance case with PBI and the union rep - only about twenty-eight days past The Employer's own deadline for dealing with it. The meeting duly takes place a couple of days before Christmas, at which PBI and the union rep give JNB a very clear view of events, some of which seem - judging from facial expression - to be news to JNB. PBI and the rep come away from the meeting with a feeling of cautious optimism that the whole thing might finally be resolved properly.

They should have known better by now. Less than a week later, JNB gives a full, formal reply. In it, JNB states that there was no harassment, no inconsistency and no discriminatory behaviour either!. JNB writes that there couldn't have been any discrimination, because PBI had been treated in the same way as everyone else. So PBI has to face the fact that now three layers of management seem incapable of realising that the Disability Discrimination Act (which by this time has been rolled up - along with other similar legislation - into a new Equality Act) trumps any procedures within its remit that The Employer may devise.

Due to the Christmas and New Year holidays and a further outbreak of bad weather, the papers from the Tribunal Service don't reach The Employer's legal department until early January. When they do, their reaction can be summed up by the phrase, "This should never have got this far!"

There then follows over three months of negotiations involving PBI's union rep, The Employer's solicitors and the Advice, Conciliation and Arbitration Service (ACAS). During this time, PBI is diagnosed with Depression, thus completing the disruption that the whole lousy shenanigans has caused to his life. In work, things go on much as they have before.

In the end, the union rep advises that a time limit has been reached and it might be advisable to settle up for whatever has been proposed by that point. Taking it to a full Tribunal could take months more, and he would be unlikely to gain any more than was on offer. So PBI - having just about had a gutful of it all anyway - decides to settle via arbitration.

And that's where PBI's story ends. The terms of the settlement are permanently confidential; PBI is not even allowed to tell his own family, supposedly because one member of it works in the same office. All he can state is that there has been a settlement. But he also feels able to confirm that something called 'A' was conceded to him in toto; something called 'B' was half-conceded to him very reluctantly; something called 'C' was shilly-shallied about with to no positive purpose; and that a certain amount of something called 'D' was involved.

PBI is more or less satisfied with the outcome. He has had the main thrust of his argument totally vindicated. Moreover he hopes that, if he has achieved nothing else, he may have dissuaded The Employer from trying to do anything like that to anyone else in his position.

He also feels that those who believe that trade unions are either not desirable or not necessary should have tried walking a mile in his shoes during the past year or so.

It just seems a shame to him that something so straightforward should have taken no less than sixteen months and an awful lot of struggle to put right.

Finally, PBI would like to pay tribute to the following sets of initials for their endeavours on his behalf since the beginning of 2010:

Heroes Of Downtrodden Labour:

EO: his union rep. Handled her first Employment Tribunal case proficiently and was always both encouraging and realistic.

AM: EO's colleague with previous experience of ET who was always ready to offer practical advice and support to EO.

PE: Lecturer on EO's employment law course. Willing to provide advice and encouragement from very extensive experience.

Those Who Served With Distinction:

These are the people who provided the strongest support (moral and practical) to PBI over the whole period:

LJ, BL, SC, SJ, DJ, LM, RC, SD, AS, BH

Those Who Served With Honour:

These are the people who provided regular encouragement throughout:

SJ, AC, ME, DP, ER, JP, JC, RP, SK, PF, RM, HP, CP, CK, SG, GG, GE, TB, WL, DH, DE, CM, JL, CS, DK, TP, CB, VW

PBI is most pathetically grateful to them all. Workers Unite!