When should employers consider DDA

[siriusb]

To cut a long story short - two back injuries at work - neither yet recognized as being accidents at work. Impending back surgery, and last week yet another OH referral.

 

Doctor was nice, plain speaking and basically said if it were him he would not go back to the job I was doing after I have had surgery. He said my back was in 'a state', and would only get worse if I carried on my physical role. He suggested I use my recovery time to think about my future. He did ask what roles he thought I could do - I suggested a couple but they are not likely to be available to me.

 

He said ultimtely he thought it would reach a point where I would be dismissed under capability rules. He wasn't being horrible - and I do think he was trying to be up front with me.

 

Interesting he asked me if I thought there was an agenda behind the referral. I said yes, and explained a bit about my ex-line managers behaviour. He said it was a 'very aggressive' referral.

 

So with the likely end to my job in the next year or so, and this being due to accidents at work is there anything I should be thinking about?

 

I have two civil service claims going through regarding getting sick days disregarded due to the accidents at work, a PI claim for the second injury.

 

My employers have been VERY unsupportive through-out the whole time I have had this injury. It's a very physical job I do and basically although I *should* be able to be relatively active post op I will be left with some limitation of movement, and any future jobs will need to be relatively calm.

 

Sorry if I am waffling - I know there are lots of knowledgable people on here that can hopefully help point me in the direction of things I should be considering - whether it be financially, employmentwize, or mentally. It's not a position I have ever been in before.

 

Thank-you

 

Hx

[siriusb]

 

Can I, somewhat ashamedly, 'bump' my post.

 

All I am really looking for is what I *could* ask for if the outcome of all the reviews, appeals etc declares that my injury is in fact due to my job, but I am dismissed on capability grounds?

 

I will be meeting with my Union rep next week but I would just like to have some idea of what things I can ask him about (for example DAL was never mentioned until I found out about if from somewhere else).

 

I know I am acting as if it is 100% a forgone conclusion - but realistically I am going to have some serious amount of money spent on stabilizing my back and I don't want to undo all the good work by launching back into a job that even the spinal physio has said I should not consider going back too.

 

Do I have to launch a seperate claim for potential loss of future earnings etc? How is that even done?

 

See what I mean - I have no idea, but my time is swiftly running out.

 

Hx

[merlyn2003]

Seek legal advice.

All employers are required to keep an accident/injury book.

If your employer has failed to keep such a book they are in breach of their obligations under the health and safety act and may be in breach of their employee liability insurance terms and conditions.

At the end of each working day/shift if no accidents or injurys have occured they should note it in the book. If they haven't or they can not show that they have a named first aider (subject to legal requirements) filling in the book for each day/shift or a duty manager doing the same (even if the only entry is "No reported Accidents/Injuries" with a signiture) they have not maintained the required documentation.

Even if an employee has a pre-existing condition that has been agrivated by normal working practices it should be noted.

 

Best advice is that if your employer has not taken steps to adapt your working environment or practices to prevent further injury or looked at redeployment within the company you may be able to claim disability discrimination or unfair dismissal.

 

Thats all the advice I can offer, I hope it helps.

Edited April 29, 2011 by merlyn2003

[siriusb]

Thank-you,

 

I have a copy of the accident report and the Riddor report, along with a yearly risk assessment (a few days out of date) and quarterly H&S rep walk-round reports (of which there is gap of 7 months).

 

In the first instance it will be my Union rep assisting me. There is no option but to do the tasks in my job the way they are done and therefore there is a significant likelyhood my job will be impossible for me to do.

 

I guess a chat with a good employment lawyer is probably a good idea.

 

Hx

[Atlas01]

More an accident claims layer to be honest if your looking for settlement amounts

 

Break this down into different parts

 

Can your employer medically re-deploy you into a post that does not interfere with your condition? If not then your dismissed

 

Has your employer accepted any responsibility over your injury, there are many people who put in accident reports, a claim will only succeed if you can prove negligence on your employers part, whatever you get will be linked into this, you have a PI claim in, make sure whoever is dealing with it is aware your employment is soon to be terminated due to it..

 

that's all you actually need to do.

 

whether you win or not i have no idea

[siriusb]

As yet my employer has not accepted responsiblity, and I have asked for a review of the details from my initial accident several years ago and placed a claim for an further accident last year. All either of these will establish (if they by some act of god go in my favour) is that the accident happened at work ~ it will not apportion liability. My employers think I am lying about the first injury and are trying to 'shift' the blame regarding the second injury.

 

It is this second injury that has ultimately led to me needing surgery, and it is this injury I have a PI claim in for.

 

Like so much of the civil service there are huge cutbacks and therefore it is unlikely there will be anywhere I can be redeployed to. They found it hard enough to place me for 6 weeks in my run up to surgery - and even that has caused me to significatly increase pain medication, have horrendous side effects from it making me very unwell that I have had to take time off sick. Ridiculous.

 

It is a constant battle.

 

[siriusb]

Just got to vent...

 

How long does it take to get a bl**dy report back???

 

Each day I hope something, anthing might drop through my letterbox - but no - nothing!

 

On top of this my Union rep is playing hide and seek again. Grrr

[siriusb]

Just a quickie - would appreciate any input.

 

I have had my end of year appraisal. All good reports, lots of positive comments. At the very end it says my sickness is cause for concern.

 

In August last year I was told my condition would most likely to fall under the DDA (now EA). Since then I have been of sick with my condition on several occasions- and had 3 days off sick due to a stomach bug that ended up with me in hospital.

 

I just wonder whether it should be commented on my Personal Development Review as there is some tacit acknowledgement by my employers that (as OH put it) I have a very serious underlying medical condition.

 

Just dont want it in there if it shouldn't be there due to the 'disability' part.

 

Hx

[mariefab]

As long as they're not considering taking any disciplinary/capability type of action over your disability related absences; there's no reason why they shouldn't be mentioned in an appraisal.

[siriusb]

Hi Marie,

 

I was on a final written warning due my condition - but all monitoring was suspended in August due to the condition being deemed likely to fall under the DDA.

 

My OH doctor has told me that i should never go back to doing the job I did before - and in a nutshell has said eventually I will be let go on capability grounds.

 

That's part of the reason why I was hoping it may be naughy of them to include it in my appraisal - so that I could show future employers a good write up.

 

Hx

[siriusb]

Hello everyone,

 

There are lots of ongoing sagas I have posted about before - and in the main these are still ongoing. However the main thing I need to sort out now is what are my entitlements if I am dismissed on the grounds of capability.

 

I recently had surgery and whilst it has dealt with some of the problems I have at an Occ Health referral I had 2 months ago the doctor said that I should never go back to my previous job (fairly heavy physical work). I recognize my employers may try and find me work elsewhere within the organization but quite simply I do not want to go to an office based job as it will nothelp my injury in the long term.

 

The Occ health doctor (who will ultimately make the recommendation) has said that I should prepare for dismissal on capability grounds at some point in the future.

 

Sorry if I am waffling a bit. Basically what I would like to know is this: if I can no longer do the job I was employed to do then do I HAVE to take an alternative if it is offered to me, or can I ask to be let go on grounds of capability?

 

Many thanks,

Hx

[siriusb]

Have g**gled and g**gled and g**gled but I can't find anything relating to whether I have to accept another role if offered so are there any peeps out there who know their onions please please let me know what you think.

 

Hx

[siriusb]

Can any offer any advice please?

 

Have long standing back issue and had surgery, consultant and GP have given me the ok to increase my activity and return to work on graduated return. Clear instructions of 'if it hurts - don't do it'. Been a bit of a fool in the past in that I have tried to do a bit too much. It's unlikely I will ever be able to carry out full range of previous duties but... and this is the big but...can I be made to go and work in another location - the nearest of which is 7 miles from my current work location. I don't have a vehicle.

 

I work for the civil service and I am not a mobile grade.

 

Kind regards,

 

Hx

[Conniff]

You need to have a look at your contract and the job offer you were sent when you were taken on, that is where is will say if you are expected to work form other locations.

[siriusb]

I have contacted the main HR dept to ask for a copy of my contract. I know that my grade is not classed as a mobile grade, unlike one grade up from me.

 

The only complicating factor (possibly) is that the title of the govt agency I work for has changed two times since I joined. I don't recall signing a new contract each time it changed over.

 

Hx

[papasmurf1cx]

So you have a disability.....

 

Answer these question to see if the Equality Act 2010 applies and in which case you can ask for reasonable ajustments eg not to travel .

 

How long have you had this problem?

 

How long is it likely to last?

 

Does the problem affect activities of daily living eg work, bathing, jobs around the hopuse, concentration, toileting etc?

 

If it has lasted 12 month or likely to last more than 12 months and you are affected in some way you are protected.

 

All Government departments have Equality Policies... have you looked at yours? You have to use the policies as that is the reason they were written to cover aspects of work that are affected by equality issues. If they breach them you can raise a grievance, then not foillowing the policy and law once the grievance has been lodged would be an act of discrimination and vcitimisation.

 

In short... you need to write official letters to HR Director outlining the problems and take them on with their own policy.

 

Hope that helps

[siriusb]

Hi Papa S,

Thank you for your response.

 

Yes, I am covered by the EA (former DDA). I have had my condition for 5 years, and although surgery has helped in part I am going to always have issues with my back.

 

Yes it does affect certain aspects of day to day living - thank goodness for family!

 

My concern is when I returned to work, or should that be tried to return to work, about 10 weeks ago HR and senior managers refused to let me go back to my normal job (even though I could comfortably done at least 30-40% of tasks) on the grounds I was at greater risk of hurting myself. Instead they put me in an office (in the next town), sitting down which well and truly screwed up my back and I ended up on huge doses of medication just to get through the day. When I spoke to them about the fact seated work was causing me more problems the response was basically put up with it or go back sick (which I hate doing: I can't stand daytime tv and I have bills to pay)

 

I suspect they may try to do the same thing this time ~ office in next town, computer based work.

 

I'll be honest. I think they want me to quit and just go away quietly.

 

I have asked for a copy of my Contract of employment to confirm I am not a mobile grade.

 

I guess the underlying issue is my employers may dress it up as a reasonable adjustment but can it really be a reasonable adjustment if it will cause me increased discomfort?

 

Hope all of that makes sense.

 

Hx

[papasmurf1cx]

Hi Siriusb

 

Makes perfect sense. You have informally told them that their response to a disability and return to work is causing you more problems than your original position. Their response is to 'shove it we've done our bit'. Have they put you to see an OH consultant? They should be listening to medical advice here.

 

perhaps you should be putting things in writing now and raising a formal grievance as they are making you condition worse.

 

What do you see the answer to your problem? This is a tactic they use often, but it is useful from your point of view when you want to continue to work.

[siriusb]

Well I was right - they do want me to go and work in another office initially until I have seen the OH doctor. Having had quite a few appts with OH I know I wont be seeing the doc for at least 3-4 weeks. And I am not convinced by the initially bit either.

 

Can they class what they have offered me as a reasonable adjustment even if I have been telling them for 5 years sitting down caused me lots of pain. My op has sorted it out in one leg but not the other. Just the commute will start off the pain and then I have to get through the day sitting in an office. I can't bear the thought of having to gradually increase painkillers again to get through the day.

 

At my wits end.

 

hx

[papasmurf1cx]

If you move... that means that you can do it. They will say it is a reasonable adjustment unless you fight it.

 

I would state that the informal complaints to management over the last 5 years and their ignoring your insistence that it not good for you could possibly be discriminatory. Alleged that in a grievance and state that if they enact it you would consider that a further act of discrimination (possibly victimisation if a Tribunal considered the informal part of the grievance to be relevant and formalising it may confirm that).

[siriusb]

Which is why I said 'no' and am waiting to hear....

[siriusb]

Hi,

 

hoping to get some sound advice.

 

I'll keep the details to a minimum but here goes.

 

Had a back injury 6 years ago that culminated in surgery in 2011. Reasonably successful, lets less pain, reduced need for drugs but still day to day things that are difficult or impossible without medication.. Took a long time for senior line manager to let me back to work even though surgeon and Occ Health okd it. Job is quite physical but major problem is when I am static for any length of time (standing or sitting). Since being back at work had two days sick and two days where I asked for lighter duties (so 4 days in 6 months).

 

Due to length of time to return to work it has been identified that i need some retraining and until such time i cannot do my normal job. Senior manager redeployed me to an office job (I was not aware it was an office job but i believe he knew it was entirely office based).

 

I have had several Occ Health referrals that had indicated that I am likely to be covered by the DDA and that i should avoid prolonged sitting or standing (I do have my own chair for when i do sit) and that if i changed role i should be assessed again.

 

So that's the background.

 

I am now awaiting another referral. In discussion with my Union rep (who is helpful but i think may be more focused on keeping a smooth working relationship with management) he agrees that my employer probably wishes 'i'd just go away'.

 

The wording of the Occ health ref leads me to believe my employers are looking to dismiss me on medical grounds as they feel i cannot work in my previous environment and that i wont be able to work in an office role (which is very true - it's agony).

 

In some ways if they wanted to dismiss me with a compromise agreement i'd be happy to get away from the politics...but how do i tell them that?

 

I have union involvement, have spoken and got support from the EHRC that the move to the office initially may be indirect discrimation but then likely to be direct discrimination as i brought it immediately to management attention and they did nothing about it.

 

I feel a bit between a rock and a hard place as how to move forward...

 

Thank for sticking with this so far...would welcome any thoughts or advice

 

SBx

[Emmzzi]

you take your boss out for a smoke or a walk around the block before the meeting and say "with occ health referals and so on this could take ages. I will need occ health referals and adjustments, and if you don't provide them I will go all the way to an ET. Off the record, if you offered a comproise agreement I'd think about it."

 

I'd only do a CA if the inury were not work related however.

[siriusb]

Hi,

 

Thank you for your reply. It made me smile on what has been an otherwise rubbish day!

 

I wish i had the kind of relationship with this boss where that were possible. Unfortuantely it is not the case.

 

I work in the public sector and the wheels grind slow.

 

I've already had the 'resonable adjustment' recommended from my last Occ health ref - a specialist chair for what small bit of my contracted job entails. This manager (and i'm not being irrational or emotive here) basically wants me out of my current work environment and has since i recovered from my surgery. Even the Occ health doc said of one of my previous referrals that it was 'aggressive' and 'i should prepare myself for dismissal' based on what was written.

 

I think the problem is I can do my contractual job with minor adjustments but anything with lots of sitting (such as a lengthy retraining course) is going to prove problematic and i believe management are going to be using this as the tool to get me out or offer me a job in an office. I actually think that they are desperately hoping that Occ health say I am suitable for a sedentary job.

 

Driving me round the bend.

 

SBx

[Emmzzi]

If you can;t have an off the record conversation I don;t know what the next step is - same convo with HR maybe? Or a grievance at not being allowed back when the doc has ok'd it?