IBS: disability, disregard and discrimination.
While researching attitudes of employers to IBS, I came across the following letter from Ken.
‘I have tended to suffer with bouts of abdominal pain and diarrhoea ever since I was a teenager. When these happen, I have find a toilet very quickly. I don’t dare to leave the house if my bowels feel upset. After a number of tests, my gastroenterologist ‘reassured’ that it was ‘just’ IBS. There’s no justice about it. My IBS makes it almost impossible to maintain a reliable work schedule, even though I always work over and make up the time. And now I am being punished for it.’
‘I have always worked ever since I left school, some 24 years ago. Work has been my life to the extent that I don’t really have any friends and don’t think twice about working long hours when asked. However it now looks as if I am going to lose the one thing in my life I live for. Even with all the medication, I have only managed 87% attendance in the last year and I have been informed by my manager than this is not acceptable. I am currently off work again and Although my employer is fully informed of the nature of my disability and the number of hospital appointments, I have been threatened with a disciplinary hearing when I go back. It is devastating to know that after seven years, they can just throw me out for something outside my control. This has made my IBS even worse.’
IBS is not like other disabilities; there is nothing to see, no injury, no problems with mobility, no blindness or hearing loss. IBS is not listed under the routine causes of disability. Nevertheless, he still qualifies as being disabled under the Equality Act (2010), inasmuch as he has a physical impairment that has a substantial and long term negative effect on his ability to do normal daily activities, such as those required in his job. The definition of disability is about the effects of a condition, not it’s cause. So he does not just have IBS, he has a disabling condition that prevents him living a normal life.
As such, he cannot be legally dismissed from his employment unless his employers have made every attempt to accommodate his disability. This might mean ensuring availability of toilets and facilitating a flexible working pattern since Ken is clearly willing to stay late to fulfil his normal working responsibilities. If his employers fail to do this and he is still dismissed, he could take legal advice through the Citizen’s Advice Bureau and sue his employers for unfair dismissal. But this takes time and most ill people do not have the energy to pursue such a claim.
But if his condition worsens and despite accommodation by his employers, he is still unable to maintain the work schedule he is paid for and he cannot find another suitable post, then he may be eligible for Disability Living Allowance (DLA), which will soon be phased out by the Department of Work and Pensions and replaced by a Personal Independence Payment (PIP) of up to £83 per week.
To recourse to law, Ken would need to prove that he is disabled under the act. This would require having a medical assessment, but here is the thing; not all consultants accept that IBS is a disabling condition.
Governments do not make it easy for people to claim income support. They can, however, demonstrate that laws are in place to protect the disabled, but do not indicate how difficult it is for them to claim their rights.
The situation is similar in the United States. IBS is not currently included in the Social Security Administration’s (SSA) Listing of impairments, but if you can prove that your symptoms are painful, disruptive and distracting enough to keep you from working a full time job and they have lasted consistently for 12 months, you may qualify for benefits. Your medical records need to show that your IBS interferes with your ability to work, that, for example, your abdominal cramps interfere with your ability to focus and work at an acceptable pace, that you need to take frequent and unscheduled bathroom breaks or that your IBS reduces your productivity by more than 20%. The SSA takes all this into account and to assess your residual functional capacity (RFC). If you can’t do your previous job, Social Security may decide whether there are less demanding jobs you can do. They may also carry out a test of eligibility for a medical vocational allowance, following an assessment by a medical consultant (psychologist, psychiatrist or doctor). Unfortunately, many doctors fail to put medical limitations in records.
Do you have IBS? Have you been threatened with dismissal or treated unfairly by your employer. The IBS Network is the UK’s national charity for IBS. It exists to inform, advise and support people with IBS. Contact them. They may be able to put you in touch with legal firms who may be able represent you on a no gain, no fee basis, and might even get together enough support to lobby parliament to change the law.
The Sensitive Gut 