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Who's responsibility

maz2017maz2017 Posts: 4Member Listener
recently I've been tupee'd over as part of continuing employment from an organisation that I worked for for 16 yrs. same staff same management same teams. Only thing that has changed is the company name and we are now a mutual unlike before when we were gov owned. Pretty much from day one (16 yrs ago) it was known I had a disability namely asthma that has since progressed to COPD and emphysema. My employers have decided that since the transforming process, that I am not disabled. They claim that the onus is on me to provide them with this evidence of my disability regardless that they have always known this.
i would love to know what the facts are about this and whether this is true. 
My case is currently with the employment tribunal 
kind regards and thanks in advance of any advice given 

Replies

  • LDNUMBERPAINLDNUMBERPAIN Posts: 21Member Connected
    Hi, this sounds like an example of what the Govt. actually means when it talks up people having more control over there lives which means we all are being given more responsibility for our own health management which includes any past documentation so those actually in control can make there most cost effective decision,meaning the cheapest option.
     In your position I would provide the request with copy's of any and all med appointments and a note reminding them in the interest of cost effectiveness it is there responsibility,not yours, to manage there own dept just as you are expected to manage yours and if they don't want the job there are plenty of very capable people who do want to work with the community spirit the Govt. so often talks up.
    If you have not yet done so I suggest you have a word with your local MP they will usually help speed things up for you.
  • maz2017maz2017 Posts: 4Member Listener
    My employers  have had all appointment letters to consultants plus two company  referrals to occupational health both stating that my condition is likely to fall within the scope of the equality act. Not only that but five GP notes in support of OH have also been provided to my employers yet they are still saying in their eyes A Im not disabled and B the onus is on my to inform them which I have.
    i don't understand what you mean about local MP what can they do, it's a work issue not a private issue. I am also lead to believe that it would also be unwise to publicise this with MP's at this  stage
  • GeoarkGeoark Posts: 1,192Community champion Pioneering

    Hi Maz2017,

    While you may not have experienced any changes in your department this sounds more like an HR issue. Here are the rules regarding as to what information should be shared under the TUPE and Data Protection Act.

    What information must be given to the new employer?
    6. TUPE requires that the following information (known as ‘employer liability information’) must be given to the new employer before the transfer takes place.
     Identity (usually the name) and age of the employees who will transfer.
     Information contained in their ‘statements of employment particulars’, such as written statement of pay, hours of work, holidays and so on (usually contained in the employee’s offer letter or contract of employment).
     Information about any relevant collective agreements.
     Details of any disciplinary action taken against an employee in the last two years.
     Details of any grievance action raised by an employee in the last two years.
     Details of any legal action (before the court or employment tribunal) brought against the employer by an employee in the last two years and information about any potential legal action.

    source: Disclosure of employee information under TUPE 20140602 Version: 2.0

    As you may notice personal information like health conditions or disabilities are not mentioned.

    If this information has not been passed on the new employer will need to ask for the information again to ensure it is properly meeting your needs. If this is the case then it sounds more like poor communication from HR, sadly not unknown.

    As the case is going to tribunal it will be up to them to decide if their behaviour has been correct and what information was passed on by the previous employer. The above is just speculation as to what the problem may be.

    As an individual I stood alone.
    As a member of a group I did things.
    As part of a community I helped to create change!

  • maz2017maz2017 Posts: 4Member Listener
    Hello again and thanks for getting back to me. I did not have any warnings under my previous employer and I was informed by the union that they cannot keep written warnings on file when they have been spent!
    From my understanding even if they could keep spent written warnings on file they cannot use it against you or share that info if you leave and your new employers request a reference, which makes sense as to why it isn't kept on file as it is useless other than for their knowledge. Nonetheless this isn't what I was asking about. 
    To be clear the employers that I left are the exact same people including HR so they had access to all my records before the Tupe so what I am saying they were completely aware about my medical condition as everyone's bar None that works for current employer are the same people. 
    Absolutley nothing has changed so how can they claim not yo know about my disability just because we are a new company. Remember I say that and reiterate again same people.
    My question is this with all the above taken into consideration including 16 yrs with same people same HR same manager ALL of which were aware of my disability who are  now saying they didn't know I had one!
    further to this they say that I should show them evidence and because I haven't it is all my fault and that they have done nothing wrong. I just need to know if the onus is on me to provide a company with information that they already had?

    i appreciate all your advice so thank you for this information regradless
    regards
    maz  

  • GeoarkGeoark Posts: 1,192Community champion Pioneering

    Maz,

    The information I gave is what one employer can pass onto another when being TUPE over, my point being that disability or health issues are not included. I not sure why you became fixated on the written warnings part as I did not say this was an issue.

    To be clear you said:

    'My employers  have had all appointment letters to consultants plus two company  referrals to occupational health both stating that my condition is likely to fall within the scope of the equality act. Not only that but five GP notes in support of OH have also been provided to my employers'

    Was this the previous employer or the current one, after the TUPE? They are not the same! If this information was not passed on then your current employer would not have this information on record.

    I don't know what decisions were taken in allowing the new company to retain certain information under the data protection act. If on the other hand you are being treated differently to other disabled people who were TUPE over this is a different matter.

    As I also pointed as it is going to employment tribunal it is for them to decide the truth and the rights or wrongs of your current employer.

    As an individual I stood alone.
    As a member of a group I did things.
    As part of a community I helped to create change!

  • maz2017maz2017 Posts: 4Member Listener
    The two OH appointments were with the current employer and not the previous employer. Actually I have had three OH appointments but only two requested to know the position on whether COPD / Asthma would fall within the guideline of the act. These appointments were also post tupe. 
    I am finding it hard to believe that my current employers are presenting themselves as not knowing I had a disability when regardless of tupe, it was all the same people within the organisation. All management structure and HR are the same.
    Additionally I took out a grievenace against my manager (current company) it was partially upheld and in that report their own internal investigator state department that COPD would fall within the guidelines and as such they should make allowances for it. However now it's going to court, they seem to be back tracking and denying point blank I have a disability. Even though the grievance findings would be evidence I would use against them admitting that they ( own internal investigators report ) said I have one. 
    Further to this, I have shown them my blue badge. 
    Im guessing this is about trying to save face so to speak.
    sorry I hope this is clearer and makes sense and one again thanks for all your advice, greatly appreciated 
    maz 
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