What action you take, will depend on the severity of the “offense”, the evidence you have to prove wrong-doing, what outcome you are looking for and your personal risk-benefit assessment including considering the resources you have emotionally, physically and financially

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• Deciding to take no action

 

This may be appropriate for you.  If you feel that taking action would make matters worse for you either in terms of your physical or mental health, your professional progression or financial security then this may be the best decision for you personally.  If, after gaining specialist advice, you do not have a case for taking action or it is felt unlikely that you would achieve the desired outcome, then this may also be the best decision to make

 

• Deciding to take action with focus on changing process and education rather than legal regress

 

This may be appropriate as a first step for many situations, especially if you want to maintain amicable workable relationships with involved colleagues in the future. If you are a member of the BMA, they may be able support you in this and may attend meetings with you. It is very important to have support at any informal or formal meetings and to have meetings recorded either physically or in writing. It is also imperative that you review any meeting minutes to make sure they are accurate and that you concur

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There are a number of ways this could be achieved:

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1.  Approaching the “offending” individual directly, e.g. if you feel harassed or bullied by a particular individual you could let them know how this leaves you feeling and that their behavior could be regarded as discriminatory, harassment or bullying.  They may simply not be aware. This would give them a chance to apologise and change their behavior and then remove the need for escalation. It is important to remember that your conversation with the individual involved should always be witnessed to keep you safe from reproach or, one would hope far more rarely physical violence or threats.  If you are going to choose this option, there are helpful preparation tools in ‘Crucial Conversations’ listed below in resources

 

2.  Local escalation which would involve following the organisations policy on harassment and bullying, which would be on their intranet or should be available from human resources

 

3.  Approaching the organisation directly. You can give feedback and see how they respond (e.g. if you feel a recruitment process has not been in keeping with equality legislation).  Have a plan in place in case your concerns are dismissed without appropriate attention.  If you are a BMA member, you should be able to get advice from them on how to proceed

 

4.  Challenging a discriminatory reference would require approaching the Human Resources department of the organisation you have worked for rather than the individual doctor who wrote the reference. Again, if you are a BMA member you can also get help with this from the BMA employment advisors

 

• Deciding to take legal action

 

Aside from private employment law firms there are organisations which can advise and help you with this process (see resources below). Before a case will be heard at an employment tribunal, there is a requirement to first go through a reconciliation process via The Advisory, Conciliation and Arbitration Service (ACAS). ACAS provides excellent advice on this. You may not need legal representation to go through their process. It is worth asking if and how you can represent yourself in this, if you wish to do so or have no other option financially

 

Only when reconciliation fails, can a case be taken to employment tribunal

The decision of taking something to employment tribunal again depends on individual circumstances and how much is at stake. The BMA legal team have set thresholds when assessing if to take a challenge on

 

It is important to understand that tribunal proceedings also include an assessment as to whether your condition is defined as a disability under the Equality Act. For this purpose, your medical records are likely to be made part of the proceedings and might be disclosed in full to the other party.

You may wish to obtain good quality legal advice and representation before deciding to take your case to tribunal

 

• Highlighting the issue by other means

 

If there has been a breach of pre-employment Health Questions Section 60, the Equality Act 2010

e.g. discriminatory advert, questions about your health asked before or during interview, you can report this to the Equality Human Rights Commission (EHRC) via the Equality Advisory Support Service (EASS).The EHRC will follow this up initially in an advisory role and feedback to you. This is an elegant way of raising concerns and ensuring organisations pay attention to their duties and can be done independently of taking legal action. The service keeps a record of such reports and can take further action if an organisation breaches the act repeatedly

 

• Reporting to the professional Regulator

 

If the perpetrator of discrimination, harassment or bullying is a doctor, then this may be raised as an issue with the GMC. Disclosure of health or disability related information in a reference may be discriminatory and/or in breach of professional guidance on confidentiality and reference writing. Making critical comments on aspects of performance which is known to be affected by a disability may also be in breach of guidance and this could also be reported to the GMC. Getting advice from the confidential GMC helpline might be helpful in deciding how to challenge this.