When should employers consider DDA

[honeybee13]

Never heen visited by senior manager before

 

It's only a person, maybe with a human side . Don't be pressured into making any decisions today, unless you want to. If you feel you need time to think about things, I don't see anything wrong in saying that. After all, the senior manager already knows what they're going to say and will have prepared for this, you haven't been able to.

 

My best.

[siriusb]

Hi HB,

 

Yes, initial injury in 2006 with second injury exacerbating first injury and adding additional problems in Sept 2010.

Have got relevant claims going in but as with everything it takes such a long time!

 

Well they have been. Union guy was good~ basically said if the doctor says she can come back (albeit on reduced duties) dept needs to find something that falls under reasonable adjustments. Senior manager said that even on basic duties on the floor as I was 'unfit' I stood greater chance of being seriously injured. I countered saying anyone had the chance of being seriously injured. He said he has to take advice on what to do next from HR and OH. He has asked for a letter from my doctor and from the specialist I have been seeing at hospital. The specialist is a nightmare to pin down as he is so busy so may struggle with that.

 

Feel a bit deflated as I want to go back just to keep active and mobile. Would have been nice if senior manager had said they wanted me back but I think they just see me as a nuisance!

 

Grrr!

[SarEl]

I am afraid that you, and your union, are wrong. It is the employers duty and responsibility to determine who is fit to work in their premises - not yours, the unions, or the doctors. If the employer believes that you are putting yourself or others at increased risk because the medication you are on or your physical condition, then they are well within their rights to refuse even reduced duties. Asssuming that your condition qualifies as a disability (which I can't say from the details here) then the employer is obliged by law to consider reasonable adjustments, which may include considering other possible work roles. But if they refuse any adjustments such as this, then if you qualify as disabled, then you would have to fight it through the grievance procedure (which you could use whether or not you have a disability) and then through tribunal (which you can only do if you have a claim for disability). Provided that the employer has a reasoned case for saying that they cannot make the reasonable adjustments, they would have a strong case. Looking at it from their point of view, you have a case going in against them for two injuries which are related, and so they would have to be exceedingly careful that they did not hand you a third by allowing you back into a workplace where you may be at risk.

 

If the employer feels that they still cannot accomodate you, their next step should be to refer you for an occupational health assessment to determine what, if anything, you can do in the workplace, and what risk this may pose to you or others. They would probably also want copies of your medical records as part of this assessment.

[siriusb]

Thanks for the replys.

 

Part of the problem is bl**dy Occupational Health. A referral was made mid December for me to have an assessment as to my ability to work. At that point I was in crippling pain. Good medical intervention and gradual increased mobility have led to me being much more able now. I rang occupational health last week who said there was no point in me having the assessment at the moment and that I should ring a couple of weeks after the operation. However that is not what the referral was put forward for.

 

The medication I take now is the same as the medication I was taking this time last year and it certainly didn't bother them then! The morphine was just to get me through crisis pain.

 

As for the two cases - one injury was in the line of duty, one was slipping in the toilet due to a soaking wet floor, poor signage and a broken light. I have put claims in to have sick absences relating to these injuries to be discounted. I have put a PI claim in only for the recent slip, not the injury in the line of duty.

 

It was deemed in August that my condition was likely to fall under the DDA but from then until Nov/Dec time I was still able to carry out my full range of duties. After discussion with my specialist I think realistically I should be able to do approx 60% of my duties with no changes having to be made.

 

Odd isn't it - the dept are short of staff yet here I am able to contribute but not able to. I know they are probably just exercising a duty of care but it is odd that it took them 4.5 years to get to that stage. After the first injury they didn't give a t*ss and put real pressure on me for the following 4 years to be working even when I was in pain.

 

Any thoughts as to what I could do to strengthen my position for returning to work?

 

Hx

[SarEl]

Yes - get that OH assessment. If it agrees with you then the employer has more of a duty to consider reasonable adjustments (which is not the a same thing at all as making them - but you cross that bridge when you come to it).

 

And you have answered your own question - their duty of care is now uppermost in their minds because you have only just made a claim! If you didn't claim after the first one, then they wouldn't give it a second thought.

[siriusb]

I didn't claim after the first one until last year when my former line manager put such pressure on me that the Union advised me to get it in before it timed out. I hate doing it but it is only in the last 6 months they have actually taken an interest in what is going on with me.

 

I am not sure what I can do to get this OH referral done as I have already been told that it will not be done until after my operation. The hospital has confirmed this could be several months away. Do I have any rights to ask for it to be done sooner?

 

Hx

[SarEl]

Your employer, if you are saying you want to return (to different duties) should ask for one. But the most sensible thing since your union is involved is to suggest to the union that they ask the employer for an OH assessment of what duties you could undertake as a reasonable adjustment. But bear in mind - if they say you can't return to work even with reasonable adjustments, then it has backfired. An employer would be plain stupid to allow you to return if OH say otherwise. And even if they agree to reduced duties, the employer only has to comply if it is possible.

[papasmurf1cx]

If you have a PI claim in and you are saying your employer is responsible, and their decision to disallow you in to work with reasonable adjustments being made, surely your solicitor should be asking for some sort on monetary compensation on a regular basis to help you out? The solicitor can ask, they can only refuse!! It might not be much that you need to keep afloat, I would say get your solicitor to write and ask them.

[siriusb]

I work for a govt dept and the claims to have sick leave due to the injuries discounted are in the system. This is not to claim any money ~ just to have the absences marked seperate to sick. My Union rep is on the case but as it is all dealt with by the pension services. If pension services (eventually) agree then I will be given back the shift pay I have lost over the last couple of months.

 

The personal injury claim a seperate matter and if I understand correctly can take much longer. In support of this I have photos, the accident report, and the H&S report carried out by the local rep ten days after which shows problems in the area the accident happened.

 

I will get on to the Union today to push for an OH referal.

 

Who'd have thought it would be so difficult to go back to work!!

 

Hx

[SarEl]

In all fairness - we do get the other kind were the employer wants the OP back at work before the are fit!!!

[siriusb]

Well after a meeting with my senior manager and Union rep nothing has really changed.

 

My GP has since signed me fit for work with amended duties in accordance with my last Occ Health referral (Aug 10) but the senior manager has said no, and the latest news was Occ Health were marking my referral as urgent (even though I had been told the week before that there was no point in doing the referral until after my operation - so Jun/Jul time) - but no-one can give me a guide as to when that may be.

 

So my question is... if my GP has effectively signed me back to work, but a non-medically qualified manager is saying not until you have seen Occupational Health what happens about sick notes / pay etc? To me it seems like I am effectively being suspended ~ should that be on full pay including all benefits or can they get away with paying me reduces sick pay?

 

It's crackers - all I want to do is go to work and be of some use in a role that I know will not hinder my back condition.

 

Help!

 

Hx

[siriusb]

This a bit of a bounce.

 

I briefly spoke to my union rep yesterday who could shed no further light on what was going on but was planning on seeing the big cheese boss to discuss situation as effectively at the moment I am absent without leave. This is obviously not of my own doing as I want to be back at work doing as much as I can(agreed to by GP in a fit note) but work wont allow me.

 

Anyone got any ideas of where this falls legally?

 

Help:???:

[siriusb]

Hello all,

 

My employer has said I can return to work but in a very different role to my normal one.

 

I am awaiting a back op and I hoped to return to my team in an entirely suitable and do-able role but management instead have arranged for me to do office work in another town. This will necessitate either two buses and a 20-25 minute walk to get to work, or two trains and a 20-25 minute walk. In all my journey time to and from work will be in excess of an hour each way. The management will pay my excess fares and any time above my normal travel time will count as working hours ~ so they are making all the right noises EXCEPT ever since I injured my back I have always had problems sitting, especially for long periods.

 

My Union rep is at a loss as to why they have made this move. A friend has suggested they may be trying to get me to quit.

 

I welcome any thoughts on this - especially as to whether I have to accept this role? Is there is a chance this could be move into the realms of constructive dismissal?

 

Am worried sick. Have depression and was trying to do the right thing going back to work but it seems to have gone wrong.

 

Hx

[elche]

Hi siriusb,

 

Sorry to hear about your back problems. Certainly my first piece of advice would be to PUSH the union for some proper qualified and indemnified legal advice - you have paid your subs now it is there turn to give you a bit back.

 

Secondly disability discrimination is not my strongest area but hopefully one of our knowledgeable CAGGERS will be along to expand on this. The reason I state this is because your back condition may well be classed as a disability under the EA.

 

What I cannot understand is why they are asking you to make this move of office - what reason has your employer given? How long did you work in the old office? Did you ever move before? Is there a mobility clause in your contract? What does your contract say re your place of work?

 

Thirdly, you mention constructive dismissal. You should note that these claims are hard to win and you should never resign without taking expert tailored legal advice.

 

"For an employee to show on the balance of probabilities that an employer has committed a breach that would entitle them to resign, there are four conditions which need to be met (Western Excavating (ECC) Limited -v- Sharp [1978]):

 

i) There must be a breach of contract by the employer;

 

ii) The breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify leaving;

 

iii) The employee must leave in response in to the breach and not for some other unconnected reason;

 

iv) The employee must not delay too long in terminating the contract in response to the employer's breach, otherwise they may be deemed to have waived the breach and agreed to vary the contract". http://www.pcs.org.uk/en/resources/legal_toolkit/legal_advice_from_thompsons_solicitors/dismissal/constructive_dismissal_staff_reports.cfm

 

I hope this is some help - you should certainly be PUSHING the union to help you.

 

Che

[elche]

Hi Sirius, I have asked 2 CAGGERS up on current disability discrim legislation to have a kwik look at your thread.

 

Che

[Atlas01]

I'd say the most important question currently is WHY have they done this, have you asked them because it's hard to dispute until they set out their grounds for making you move

[elpulpo]

As Che said, pressure your union for legal advice on this. Your rep, from what you've stated on your other post, seems to have provided you with adequete practical support, but a union has plenty of legal weight and should be able to force the issue for you.

As Atlas said, you need to push the ER to demonstrate why they've made the decision to send you to an alternative site. You should be explaining to them that the role isn't suitable due to the sitting.

[siriusb]

Thanks for the input.

 

I have rung the operational manager this morning and he says that I cannot be allowed to go back to my old post at the moment as sometimes(rarely) it is confrontational and as I cannot do my full range of duties I shouldn't be allowed there. He says this extends to the role that I know I could do (which is never confrontational). He also mentioned several times the claim I have put in (to have my recent sick leave discounted as an accident at work and a seperate PI claim). In some respects I see a lot of arse covering and wonder if I am being penalized for puting the claim in.

 

However he didn't comment at all on the seated aspect of the proposed job - just went on about how he will not let me go back on the floor. So am I caught between a rock and a hard place. The conversation ended with me saying I would try to see my doctor for advice (who will say that Occ Health should advise), and the manager saying he would let my Union rep know of the conversation.

 

Any thoughts?

 

Kind regards,

 

Hx

[siriusb]

To update : spoke to my Union rep who has advised I at least try it. His thinking is if I try it and it is not suitable (whether through travel or sitting) he can go back to management and say they need to find something else, whereas if I don't try it they can rebuff any future 'issues'. Makes sense - lets just hope I don't make my back worse by trying.

 

Thank-you to everyone for advise ~ welcome any further pointers/ideas.

 

Kind Regards,

 

Heidi

[siriusb]

Hi all,

 

Just hoping for advice regarding my position.

 

I was signed back to work with amended duties in line with current Occ Health referral. Part of this specifically says not sitting for extended periods. I know that sitting seriously increases my back pain so suggested to employers a role which involves minimal sitting and allows me to walk around to keep back pain at bay.

 

My senior line manager refused this and has put me in an office role which is primarily computer based. I went back on Thursday. Thursday evening I was getting pains where I hadn't had them for a month or so. By Friday evening I would say I had been set back 4-6 weeks. Over the weekend I have had to use a stick to walk, cannot sit in a chair for more than ten minutes and frequently have to hop from leg to leg to allieviate some of the pain. Last night the pain was so bad I had to take sleeping tablets on top off all my normal pain medication.

 

So how do I tackle my employers over this? I was thinking I could suggest a standing station but I don't think they are likely to pay out. I know if I carry on having to sit to do work I will end up having to be signed off sick again very soon ~ which I don't want. I have no problems with the work they are asking me to do, and the people I am with are nice - but it is causing me such pain. Obviously I will be speaking with my Union rep asap but did anyone have any thoughts regarding my/my employers legal position? My last Occ Health referral say the condition is likely to be covered by the DDA (have had condition for 5 years).

 

Just don't understand why they have put me in this role when I have told them it will cause me pain.

 

All advice, good or bad, appreciated.

 

Hx

[papasmurf1cx]

Just remind us, have you already put a grievance in about all this and was it resolved to some or any satisfaction?

[siriusb]

No grievance put forward on this particular issue. Union advice has been to try it - which I fully understand.

 

Was wanting to raise grievance about tactic of former manager and business of her telling me she was putting me forward for dismissal (over a year ago now!) but as Occupational health ruled my back problem was a serious underlying medical condition the Union chap said that the Dept tended not to dismiss people when that was the main reason for absence. The slip in the toilet that exacerbated my back condition (in part due to dept failing to replace ppe footwear) is now being covered by PI claim (which I hated putting in for but as dept stopped my shift allowance due to sickness due to it PI is main way to claim it back if Dept are found accountable). So other grievances being dealt with other ways.

 

Can I raise a grievance with the very people who are putting me in role that makes my condition worse? Don't managers just protect each other the higher and higher they get? My understanding is it is employers who have the last word as to whether I go into work, regardless of my GPs recommendations. If they have put me in a role that is away from my home station - adds the better part of an hour to my travelling time per day and is sitting - can they reasonably turn round and say that I cannot work in a mobile role at my home station for risk of me harming myself?

 

I am so frustrated by all this.

 

Hx

[papasmurf1cx]

I would listen to the Union advice, as they are on top of it since the Pi claim is in. If they advise a grievance then do it and yes you can and should complain about the managers that have done this especially if they have gone against their own OH recommendations and that is aggravating a known condition. Be aware though that in PI claims clarity of problem is best and putting on more and more incidents like aggravating conditions muddies the waters for the judges. Also that double recovery is not allowed.

 

The reason is because management are putting you under pressure and want you to crack of your own volition ie they don't want to dismiss you on capability grounds. However if you grieve your situation and allege discrimination and they end up getting rid of you that could be deemed victimisation. You are right all managers back up the decisions of their juniors generally.

[siriusb]

So is the best course of action for me to:

 

1) go to my reporting manager tomorrow and explain that sitting is making my back pain worse (show her my current OH referral) and could they either a) provide me with much more work that involves standing/moving around (bearing in mind that this lady has had me dumped on her and has already said she doesn't think they will have 5 days worth of work to occupy me per week) and/or b) could she see if they can provide a standing workstation?

2) Contact my Union rep and ask where to go from here?

 

I work for Civil Service, and my goodness don't the wheels grind slowly.

 

I am currently awaiting another OH referral (let's hope it's soon) in which I will be showing the rep/Doctor a rather scarey MRI scan which I suspect will have him confirming absolute minimal seated duties until after my operation.

 

I think you are right about them want to avoid dismissing me on capability grounds. That makes me sad as my line managers and even the chap who wont let me do the standing job say I am a grafter when I am at work.

 

Hx

[papasmurf1cx]

2 first listen to union advice and then 1 if that is what they say.