Hi and thanks in advance.

I have been absent from work for a while and have been diagnosed with chronic depression and anxiety the depression has been related to a previous diagnosis and treatment for cancer.

I have made some strides mentally and feel that I am now in a position to return to work and have been advised by supporting organisations that I should be entitled to certain reasonable adjustments.

I have formally requested certain adjustments from my employer but they have all but declined my request and seem to be following their sickness process which does provide some short term adjustments e.g phased return. I had an appointment with OH and provided them with a supporting letter from my Psychologist along with a return to work plan detailing adjustments I had requested. During the appointment I got the feeling that the Occ Nurse was simply following what my employer deems as reasonable and her suggestions more or less mirrored their adjustments.

I decided to retract my consent for the report to be sent to my employer until I had the opportunity to read it. They have now declined this request and simply stated that they don't have to show me a copy of the report before it is sent to my employer and that they would inform them that I had not consented to the report being sent.

At no point during the call was I told of the consequences of retracting my consent.

My questions are:

1) am I entitled to see a copy of the report before it is sent to my employer the session was carried out by a nurse.

2) I would have thought that Occ Health would assist with suggesting reasonable adjustments based on my disability and needs but there didn't seem to be any interest from nurse in this regard. How do I get medical support for the adjustments I feel will give me the best chance to return to work and be productive.

I simply want to give my employer the opportunity to arrive at a fair decision based on my needs in line with any processes they have around treating disability in the work place.

Many Thanks

Hello and welcome to CAG. People should be along over the course of the day with advice for you.

Can you tell us a bit more about your disability and how it affects you working please?

HB

Weird one.

Usually they don't have a problem with you seeing the report first, this makes things transparent.

Unless the nurse has been told what to write in the report regardless of what was said and done on the day and despite your own report.

You can sar them to see the report.

One thing I always point out is that OH doctors and nurses are still subjected to the gmc rules and are registered with them.

Giving a report that is the opposite of a private consultant puts them in a dodgy situation as they're paid by the employer.

For example, someone has a broken knee and an orthopaedic consultant reports that rest must be observed for 4 weeks after knee replacement op.

OH doctor sees patient at week 2 and says that they're fit to resume.

In such scenario as soon as you ask for their gmc number they will magically revise the report.

You don't have to tell them why you want the number and they can't ask you, they must give it to you immediately upon request.

Hi and Thanks,

My symptoms are primarily related to my anxiety and depression and the medication I am taking so things like migraines, fatigue, extreme nervousness, disrupted sleep, panic attacks, worry, they increase with pressure. I have been told that I should make a full recovery in time.

Apparently OH Nurses are governed by a different body which doesn't stipulate that they should provide you with a copy of the report.

now normally you can demand to see a doctors report before it is sent off or have a copy as a SAR but there are exceptions and they apply where the mental health of a person may be a concern if they saw the report.

Once consent has been given you cant retract it anyway.

you dont say what adjustments you want, the employer has to consider reasonable adjustments but that is very open ended and will vary enormously according to what you actually do

I work for a large bank in London, what I am seeking help with is to ensure that I have provided what I need to provide from a medical information perspective to my employer to ensure that they have full visibility of my needs so that they can then decide fairly to decline my request fro adjustments if they wish to.

Is it possible for me to get an independent assessment of some kind?

Thanks

*fairly or unfairly, sorry - what I am trying to say is that I understand what adjustments my disability needs and I can't see any reason why my employer could not accommodate them including their own processes. I have a very good understanding of what changes can reasonably be made in my role and haven't asked for anything unreasonable, plus my adjustments have been guided by my medical support providers.

so, have you told your employer what you would like as far as adjustments go? With some physical handicaps it is fairly straightforward such as different height desk or new chair for an office but a bit harder if you operate a lathe for example.

With mental health problems it is normal to offer a phased return to work and sometimes it may be possible to work on something different such as a single project that has measurable progress and attainable targets. Have they rejected your request or just not understood and gone for a stock response rather than a tailored workaround?

You may find that their OH person may well recommend CBT and that is great apart from the NHS doesnt have the capacity to see everyone who would benefit from it so will they consider seeing someone privately for example?

I would also seek a review of your medication as some works well for the majority but turns the minority into zombies or has no effect whatsoever. Also combinations of drugs can do weird things when they individually work well at what they are for. You then end up taking more drugs to counteract the effects of your current cocktail and that usually supresses your mental acuity to such

Thanks Ericsbrother,

A 'stock approach' sounds about right its not that whats being offered as reasonable adjustments aren't useful but I don't feel they remove the obstacles I will face and no real thought has gone into them. What I need is the ability to be able to build my confidence without being under extreme pressure and the related worry of getting the boot. Which is the reason that my employer isn't willing to provide me with what I am requesting.

I haven't requested anything that hasn't been provided to other employees before or that isn't available as an option under my employers own processes.

I have the medical support in place and know what I need from work and what I have requested I am willing to be flexible in that once I am up and running they can remove the adjustments. My mental state is that what they are suggesting are simply items which they offer to any employee thats been on long term sick regardless of disability and as such don't help me from a mental health perspective because they don't remove the soft obstacles I face.

I have CBT and it didn't do anything for me, the meds have helped but the anxiety and the related symptoms are the problem and the attitude of my employer just makes that part worse.

I am at a point where I just want them to make a decision and want to provide them with a true medical picture and if they decide against providing me with I need then I can decide if I can take it to Tribunal.

And what are you requesting?

Its a fine line between reasonable adjustments and a capability issue.

What I need is the ability to be able to build my confidence without being under extreme pressure and the related worry of getting the boot.

This reads like you are asking for no targets and no deliverables - is that right?

No in short I'm asking for flexible working (change to working hours and from home) sickness absence to be documented as disability related, and disability leave if my condition worsens. based on ACAS's website and what they have advised:

changing working hours or patterns of work

a phased return after sick leave

modifying sickness absence triggers - these are the number of days' absence when managers consider warning, and possible dismissal, unless attendance at work improves

modifying performance targets.

As long as these are provided I will be able to cope.

Clear objectives and targets are fine - I never had an issue with the work I do previously and have had very good appraisals previous to my disability the symptoms of which were triggered by incidents at work.

so flexible working but not a phased return? now that could mean a change to start and finish times or are you after something more than that.. I dont buy into working from home as a panacea so other than on specific tasks or projects and again what terms or objectives would apply to this request and how would performance be measured. Without some yardstick it would fall into just avoiding the responsibility you have to your employer rather than a real method of being productive so work from home one day a week on specific things could be workable, just avoiding going into the office isnt a realistic prospect.

As we dont know what it is you do at work it is difficult to say whetehr the difference bertween their stock response and what you ask for is something that can be overcome but I will tell you that no employer will allow a situation like this to drag on for ever so a demand for special treatment as an open ended thing is not realistic. You may consider yourslef to be disabled but as you have made a big to-do about your OH report I suspect that others dont see it that way and that the "permanent" requirement isnt there and you are ambivalent about this yourself.

they have a business to run and whilst they may be happy to do waht they cna in the short term to accommodate your requests and requirements there must be a finite limit for this in their eyes. That may be a year for example, can you see yourslef recovered enough to return to normal duties in that time? How long have you been absent from work including your cancer treatment? Do they need to employ someone to cover for your absence, either in the long term or by local redeployment for the short term?

Dismissal on capability grounds is not that uncommon but often the employer makes mistakes because they dont appreciate the likely outcomes from the outset and so that gives you some leverage to seek a settlement and leave by mutual consent.

I know this isnt what you want to hear but be realistic, you are not so far offering your employer any decent reason to stick by you in the way of time limits. Have you formally offered to go part time or indicated you are open to a review of the situation after a certain time on the understanding that dismissal is a possibility? They need to plan for the future either with or without you.

Thanks Ericsbrother,

I work as a Operations Manager, I can see myself recovering over a 6 month period. But because of my anxiety which kicks in and is debilitating I need the protection I have asked. I am flexible and more than willing to work with and the businesses needs. My employer does have a department that specifically deals with disability with its own budget so no cost impact on my dept, I wasn't told about them even though I had requested options of support available from HR just got lucky that I found out but as it stands they won't engage.

Phased Return: is there, available to anyone - stock response

Home Working: as a business we have the tools in place to be able to work remotely once I recover I have no issues with any external customer visits where there is a real business need. In my role and time with the my employer this is the norm and I'd say 90% of the time. Travelling and being in an office is something I want to do but when I am ready as this is another trigger. Requested because of social anxiety which I need time to work on andI have made strides with this in my personal life.

Flexible Working: Basically start late finish late (because of symptoms and side effects) employer has said to request through Flexible Working Policy, which is fine if they confirm it as a reasonable adjustment.

Change to role - requested a very small portion of my role be completed by someone else - as this is a trigger, again very doable for the business.

Performance - simply requested that this takes into consideration my disability and slight change to role. I have no iss with performance being monitored through the normal employer process.

Sickness Process - Requested that disability absence be counted as such, triggers be reset and or counted as such, Absence Phase be reset to Phase A - this is key for me because it is a major trigger. And a key reason for my absence was due to and incident and bullying and then my employers failure to carry out a risk assessment and follow advice from OH the last time I returned to work.

Providing these adjustments are in place I can see myself managing my symptoms and make a full recovery in the next 8 months more than likely a lot sooner. I have been absent for 12 months but have only been paid for a portion so there is no real cost to my employer for the past 12 months as we have employee Income Protection. They don't need to employ anyone but I understand the business needs around this.

To date I have got the impression that they don't want me to return but I have always tried to remain positive and simply want to keep my job and have remained engaged. They have used some extremely dodgy tactics to get me to leave but thankfully I realised. I was in a real bad way which at the time only made my illness worse.

I have offered to review the adjustments every 8 or 12 weeks, and as long as I am up and running I have no issue with them being removed. I have also offered to be flexible around what I have requested but to date my offers have fallen on deaf ears.

I have thought about returning part time but wasn't sure if that was a reasonable adjustment or if would be appropriate for me but is something that I would consider and as long as there is the opportunity to go full time again at some point.

I have been advised by my doc not to return until appropriate adjustments have been sorted. I have tried to discuss adjustments with OH 3 times previously but felt that they were not really interested in my needs and in my last appointment just stating (differently) the stock response that my employer provided.

Thanks for your help.

Does your condition meet the requirements of the 2010 Equality Act ? In order for your employer to be obliged to make reasonable adjustments you must meet the legal definition of what is a disability. The act says "a disability is a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities".

Yes it does, but I understand only a Tribunal can decide that but ACAS, Macmillan, GP. Psychiatrist OH all have said it does. I'm just trying to be as reasonable as I can. I have no doubt I can do my job as long as the adjustments are provided and like I said I'm flexible but its tough considering what I've experienced and it terms of work like hitting my head against a brick wall.

I have contacted access to work and hoping they will be able to carry out a fairer assessment. I just want to get better and be supported at work.

I'm not currently in a position to answer this in detail as my internet connection falls over regularly (i'm abroad in a country with unreliable internet), but it seems to me that there are two confusions here.

The first is that there is a right to see or amend an OH report before it goes to the employer. There isn't. That right is for reports requested from your own medical practitioners. OH work for the employer, not for you. You have the right to refuse to see OH (although I wouldn't recommend anyone do so), but you do not have any rights over the information they use our their opinions. Effectively, once you see them, the relationship is between them and your employer. The employer may permit you to see or comment on what they say. That is not obligatory though.

The second one is a common misconception - the Equality Act, and disability, does not guarantee any rights to reasonable adjustments, and every situation is judged independently. So just because someone else gets something does not set a precedent that you can have it. The only way to determine what is an unreasonable refusal is to take it to a tribunal, and that is usually only after you have lost your job,

My one observation is that I think it is going to be a difficult position to argue that after significant levels of sick leave (and there is no discounting sickness due to disability - that only applies to pregnancy) and the suggestion that there is a very lengthy further period of adjustments (which may or may not be reasonable), the time here is going to stretch "reasonable". The employer is in a strong position to deem this as a capacity issue and take action based on inability to perform the job role due to health.

"You have the right to refuse to see OH (although I wouldn't recommend anyone do so), but you do not have any rights over the information they use our their opinions."

This is wrong, it's your data, disclosable under the gdpr.

"the Equality Act, and disability, does not guarantee any rights to reasonable adjustments, and everysituation is judged independently"

This is half right, there's no guarantee, however employers, especially big firms have policies protecting disable employees. Most common policy is to allow medical appointments during working hours if no alternative is available.

"it is going to be a difficult position to argue that after significant levels of sick leave "

As far as we know the sickness was initially triggered by an incident at work, so that's not a difficult position to argue for a good union rep.

Op, did you contact the union as advised in earlier posts?

To correct this last post. I am correct. GDPR allows you to see data held after application for it. It does not give you the right to see an OH report before it is passed on to the employer, or to amend or refuse that report before it goes to the employer. GDPR provides a tiny fraction of the rights people assume it does.

Whatever policies an employer might have, my statement is 100% correct. The Equality Act in no way guarantees reasonable adjustments, and the only arbiter of what is reasonable or unreasonable in any individual circumstance is an employment tribunal. I'm not sure where the assertion that the most common policy is around medical appointments- whilst many employers would permit appointments for staff during working hours if no other time is available, I am not aware of any statistics saying that it is common or how many employers have such policies. The only legal provision for time off for medical appointments relates only to pregnancy. It is important not to confuse what one thinks employers do, or what one's own experience of employers is, with facts.

And there is no evidence whatsoever that the incident or incidents at work caused anything. That is an allegation based on a throw away claim with no facts supporting it. Any good union rep would be looking at the facts to determine whether there is anything to support such a claim. Not assuming things based on no facts. And if such evidence exists, then any good union rep would have called the lawyers by now. Regardless of anything else, if there is evidence to support the claim, then that is a compensatable injury which stands alone - and quite separately - from capacity issues of an employee.

But I do agree that the union is the place to get advice.

Op, get a good union rep, one ready for a fight if needs to be.

Be aware that many union reps are in the employer's pocket for their own gain.

Some others are planted by the employer to gain an advantage on every case, big and small.

You recognise the wrong signs when they say there's no hope.

There's always , always hope and room for negotiation, always.

Did I say always?

Op, get a good union rep, one ready for a fight if needs to be.

Be aware that many union reps are in the employer's pocket for their own gain.

Some others are planted by the employer to gain an advantage on every case, big and small.

You recognise the wrong signs when they say there's no hope.

There's always , always hope and room for negotiation, always.

Did I say always?

Seriously? It is regrettable that you always consider that any union rep not 150% saying that their member has a brilliant case and will win loads of money is in the pocket of the employer. Most people would point out that in the real world, you need a case, not a sense of injustice. It's not fair, no. But that's life. There's always room for hope, yes. But there is also such a thing as not raising expectations beyond the achievable. It is not always, or even commonly, the unions fault their rep hasn't won an argument. There are lots of other explanations than your oft repeatec claim of corruption. If you have such a low opinion of unions as you show here, perhaps you should be advising people to take independant legal advice? After all, a lawyer won't be on the employers side....

OP, just note, if you did take independent legal advice, you would lose the right to union representation. It's the union, or another lawyer. Not both. But if you genuinely think you have a case to argue and the union aren't doing the best job they can, then you have that option.

You may not always get the advice you want to hear, here, from the union, or from a lawyer. I'd be surprised if you did. But be wary of advice that is always about what you want to hear. Based on a few selective pieces of information, the best you can get is a range of opinions. All or none of which may be helpful. But the last time I looked there was no magic fairy granting wishes - it is always possible to hope, but that is a long way off it being possible to win!

I don't know whether you have a case or not, and based on what you have said here, all that anyone can offer is advice and words of support AND caution. Beware fairy take endings. They are few and far between. Go to your union and find out what they have to say. This is what you have paid them for.

"if you did take independent legal advice, you would lose the right to union representation. It's the union, or another lawyer. Not both."

Where did you read this???

Anyone can take legal advice any time without losing the right to union representation.

In fact, good union reps will take legal advice themselves for complex cases in order to explore all avenues.

The op could ask any independent solicitor for advice to check if anything more can be done.

It's the same as asking advice here, it's only advice, not legal representation.

On a different note, if the unions only fought cases with legal background and disregard injustice, we would not have workers rights we have today, all gained fighting injustice as the laws needed to be changed.

See health and safety, working hours and holidays for example.

They didn't have any legal bases when they were discussed, but unions fought for it.

Op, whether you have a winning case or not is to be assessed, but be wary of advice of not fighting your corner.

The alternative is to lose your job, so even if you had no case whatsoever, it would be worth a punt to fight and the union should assist you in this, not telling you that you have no hope and abandon you.

Thanks Guys,

Good points, I'm not part of a Union. I am seeking legal advice from a friend at the moment and hopefully that will clarify what my options are then I will feed back here and let you guys know how it progresses and hopefully it helps anyone else in my situation.