Employer Refusing Reasonable Adjustments

[theblackkat]

Hello Everyone,

 

I have been suffering from a physical impairment, which occured a little over 12 months ago. I have difficulty walking and suffer chronic pain because of this. I am also having tests for other possible damage to my body, which could have serious consequences for my mobility in the future, if the tests show what the doctors are looking for. Nevertheless, the state I am in now is bad enough and I will be like this for the rest of my life.

 

When this first occured, I was absent from work for 9 days. I could have been absent for longer but felt compelled to get on with things. There was then a period of 5 days and then 1 day a few months later for the same thing. When the pain flares up I simply cannot move without great difficulty.

 

After the last 1 day absence, I was called in for a 'welfare meeting'. However, rather than see how I was doing, like the letter I received stated, it was more of a warning that if I am absent again for this condition I will be subject to disciplinary procedures and I should be looking at it "from their point of view". I was offered no support. They also wrote to my GP, with my permission, and I also received a copy. My GP confirmed everything that I had already told them.

 

I made a Reasonable Adjustment Request, but HR said that I needed to submit a Flexible Working Request, which is not the same thing. I submitted the Flexible Working Request. I was called to a meeting to put my point across. I felt that if I was able to do my job from home during the pain flare-ups, then the company would not lose out and I would not lose out either. My request was denied on the grounds that it would cost the company too much money to provide a laptop and my manager would not be able to monitor me as I work. Why I need to be monitored is anyone's guess.

 

I appealled the decision and said that I was told that this was the only way to make a Reasonable Adjustment Request and they should be looking at it as just that, not a flexible working request. Although, in hindsight, I feel that they may have wanted me to submit it as flexible working for their own purposes. I appealled and was invited to another meeting. This time I felt that the attack on me was harder than the last time. I was told that I should expect to be paid less if I worked some days from home, as I would have no travel expenses. I was also told to take annual leave if I cannot get into work! The company offers 4 weeks paid sickness, of which I have only used 1 day of this year, I do not feel it is right that I have to use my own annual leave if I am unable to get to the office. Again, I asked for support and received none.

 

When the decision came through it was denied, as I knew it was going to be. They said that they do not agree with anything on the doctor's letter to them, nor do they agree with the doctor that I am now disabled. I use a walking aid to get around! Also, it was the same things as before; It would cost the company money and my manager cannot monitor me. the letter also told me that I will be invited to a meeting with HR to discuss my GP notes.

 

I feel that they are setting me up for constructive dismissal, it is really upsetting me and I really don't want to go back into that place. They are making it extremely hard for me. I am trying to come up with solutions and they don't want to know.

 

What can I do?

Edited March 21, 2015 by theblackkat

[Atlas01]

Due to the sporadic nature of your condition i doubt you would be eligible for reasonable adjustments under the equality act. Until you are your employer has little need to do too much, without knowing the condition and the likelihood it may fall under the act (possibly degenerative) then they are legally (morals mean nothing) in the clear with their actions.

[theblackkat]

Thanks for your reply. However, I feel you have missed the point of my post entirely.

 

 

• I am already disabled, as confirmed by my GP and ACAS.
  
• My condition is not "sporadic". I am in chronic pain and my ability to walk diminishes slightly everyday, hence the need for a walking aid. The pain is worse on some days than other, which would force me to stay at home on the days when it becomes excruciating.
  
• My employer has openly disagreed with what my GP has told them and made their own mind up. They have committed this in writing.
  

• My employer has a paid sickness policy of 4 weeks, which I have used 1 day of this year. However, they are telling me to use my annual leave for sickness.

  
  

Something else which I forgot to add in my original post; When the appeal meeting minutes were sent to me, I was asked to sign them or send them back with any amendments. I sent the minutes back with amendments, as they had missed crucial parts of the meeting from it. However, I was not sent the amended notes, I did not sign them to agree to them, they simply ignored it and went ahead with the decision.

[Emmzzi]

Couple of points

- GP cannot decide you are disabled for employment law purposes - only a court can do that. He can offer an opinion though

- I am surprised you have not been refered to occupational health - ask for that now and when you are there ask nosey questions about adjustments

- Does your 4 week sick pay say it is discretionary by any chance?

- How long have you worked there

- Are you in a pension scheme

[theblackkat]

Ok, so are you saying that I'm not disabled based on what I've said? Regardless of whether you think so or not, the fact remains that I am disabled, I will be like this for the rest of my life and it has a detrimental effect on my daily life.

 

I have not been referred to Occupational Health. I brought it up with HR but they did nothing.

 

It doesn't say it's discretionary.

 

I've been there 2 years.

 

Not in the work pension scheme because it's worthless.

[Emmzzi]

I am saying that "disabled" in employment law terms is different to that in medical terms, and the only place where it can be determined is at court. It's nothing to do with my opinion, so no need to get chippy about it!

[theblackkat]

Sorry, I don't mean to get snappy about it. It's just that I'm getting so stressed from my employer refusing any type of support that I'm a little sensitive about it at the moment.

[SabreSheep]

https://www.gov.uk/definition-of-disability-under-equality-act-2010

 

"

Progressive conditions

 

A progressive condition is a condition that gets worse over time. People with progressive conditions can be classed as disabled."

[Emmzzi]

So, I think you need to ask, in writing, for an Occupational Health referal.

 

If sick pay is contractual not discretionary it is up to you if you use sick or holiday; if you use holiday it should not count towards attendance procedure trigger points.

 

Join a union.

 

Is there a support group for your condition? If so do they hav information for empoyers and/or a legal helpline?

 

I asked about the pension in case you get ill health retired. but without membership that's academic.

[ericsbrother]

as an aside, always join the company pension scheme, you pay less NI and tax and there are other benefits.

[theblackkat]

Following up on this. I have contacted ACAS and they have agreed that my condition is now a disability due to suffering for more than 12 months and will be for the rest of my life. ACAS have said that, if the employer has not used someone qualified medically to say that I am not disabled and just gone ahead with disagreeing with it themselves, they are massively in the wrong. I have it in writing from them that they didn't use any medical opinion, just their own.

 

I also have it in writing from my employer that I am now forbidden from taking time off for this medical condition. FORBIDDEN.

 

Funnily enough, they have set up a meeting with occupational health in the coming weeks.

 

According to ACAS, everything my employer is doing is wrong. My case is building.

[Emmzzi]

Did you follow any of my other advice?

[theblackkat]

Joining a union? I haven't done that.

[Emmzzi]

Asking for an occ health referal in writing.. finding a support group for your condition.. etc.

 

Ok. Looks like you are not seeking advice, just updatnig us? Thank you for that. Do let us know how it goes.

[theblackkat]

My employer referred me to occupational health after my GP sent a stern letter to them. There is a charity for my condition and I have contacted them for support and advice also.

[Emmzzi]

Excellent Hopefully they will have some educational materials that might help your employer.

[Sidewinder]

Watching this with interest. Whilst I can't really add to the advice already provided it does seem that the employer might be setting themselves up for trouble at a later date should this ever end up at a Tribunal. Regrading being 'forbidden' to take time off due to your condition, did you get that in writing? Was it said in a formal meeting with a notetaker present? You could do with a copy of those notes as that could prove damning.

 

On the subject of disability, we talk here in terms of a disability as defined by the Equality Act. This gives specific protection in law, but what is said above is that whilst both you and your doctor BELIEVE that you have such a disability, there are very few conditions where that is automatic and ultimately it could take an Employment Tribunal to determine whether your assertion that you are disabled is true. Naturally a doctor's opinion would almost certainly be taken as sufficient for those purposes, but it may well also involve an independent assessment to concur.

 

The employer does not HAVE to accept the 'reasonable adjustments' that you propose - even with an agreement that you are disabled as defined by the EA - merely that they have 'considered' them. Once again, what is 'reasonable' has no fixed point in law, and it would be down to an Employment Tribunal to decide whether the employer's refusal to a particular adjustment was fair in the light of the work carried out and the cost of that adjustment to implement considering the size and resources of that organisation. A lack of available supervision could be a valid reason not to allow you to work from home, as could the cost of providing a laptop, but the employer might struggle to demonstrate 'reason' if for example they routinely use laptops and could easily configure one for home use (eg to set up a VPN to access the work network) or where other parts of the organisation do allow staff to work from home - that would be almost certainly discriminatory.

 

What an employer should do is to consider ALL reasonable adjustments in order to allow you to attend work and to be productive. This may involve a change of function, allowing you to sit at a workstation instead of stand, a change to seating or the workstation to allow you to work free of pain and without involving movement likely to cause further damage. At the very least, a reasonable employer should set different trigger points for absence associated with the disability. In 'forbidding' disability related absence, or insisting that absence relating to the condition is taken as holiday - where other staff enjoy up to four weeks sickness absence without similar restrictions, this might be the undoing of the employer's case.

 

All of the above does not mean that an employer cannot dismiss somebody in your position - merely that in doing so they must CONSIDER any 'reasonable' adjustment which might allow a person, disabled as classified by the EA, to remain in work. You can still legitimately be dismissed on grounds of capability if you cannot carry out your role, but simply disagreeing with qualified opinion and refusing to at least consider suitable proposals, or putting barriers in place which would not exist for an able-bodied employee could quite easily set the employer up for a rough ride at a Tribunal.

 

So, if they engage OH, or send you for an independent assessment with another doctor, and consider recommendations made by those professionals, and if they genuinely consider what they 'can' do then they would be acting lawfully. If however they give you unreasonable demands, refuse to accept that a condition classifies you as disabled in the face of contrary qualified opinion, and if they flatly refuse to consider 'reasonable' means of allowing you to work, then this is heading towards discrimination and you must keep full and detailed records of what is said and by whom, together with minutes of any meetings. You might just need them later.

[phaitun]

Contact access to work and get them on board, this will have the idiot managers worried sick that an independent assessor is looking at reasonable adjustments, a workplace ergonomic assessment and other issues. Your stress is also being caused by the managers actions, get help from access to work for that also and get it recorded as being down to bullheaded attitude of the dinosaurs that are managing you.

 

May be worth joining a union and also getting some independent legal advice as it appears they are trying to bully you out.

 

That comment about you being forbidden to take sick leave is a classic! Would be great if that is formally recorded somewhere?

 

I am sorry to hear about your disability I suffer from a similar set of symptoms and tried to help out my employer by going in etc! Not a good move on my part as my goodwill backfired when my Ill health retirement question was raised

 

I hope it works out for you. The more 'independent' people that get involved the better.

 

Access to work are contacted through the Job Centre

[SabreSheep]

In addition to the advice already given.

 

As Emmzzi suggested, join a union.

 

Tribunals now have fees attached to lodge them. Some unions will pay those if the case is strong enough AND be able to help you with legal representation