unfair treatment at work

[isisandkia1961]

Hi, I could do with a little help as new to this. I am working for a large car parts firm delivering parts, I suffer from sleep apnea which is a disability, one of my work mates which I thought was a mate told the manager how tired I looked and swerved the van, so immediately I was send home with no explaination and no proof of the allegation. I am off sick with stress due to all this, my disability is controlled by a CPAP machine and I am perfectly fine to drive and have never had an accident, I feel as though I am being discriminated against and that no one believes me which is awful. Any advice would be greatful, thanks in advance, also forgot to mention that I pointed out that other drivers have had accidents, quite badly some of them, my reply was "but they don't have sleep apnea" which means I am being treated differently to everyone else

Edited June 15, 2015 by isisandkia1961
neede to add a few things

[unclebulgaria67]

This is difficult, as your employer has a responsibility for you and the wider public. The only way you will move forward with this is a Doctors report saying that you are fit to perform your job as a delivery driver. If you had an accident after this had been reported to your employer, they would be in trouble., being potentially liable.

 

See your GP or the doctor who has treated your condition to see what they can do.

[isisandkia1961]

Thanks for your reply, I am seeing the docs and hospital for my conditions but I went through the same thing 12 months ago so its not as though my company didn't know about my disability but because one person said I looked tired, but by the way was a lie, the thing that popped into there head was "you have got sleep apnea" and I know that I am fit to drive, I wouldn't risk my life or anyone elses if I thought I would a danger on the road. Going to see some one at the CAB as all this is really stressing me out as all I want to do is get back to work, they have no idea what they are causing me.

[unclebulgaria67]

Not sure CAB will be able to help. If your employer thinks you are not fit for work driving for them, then it is up to you to get a medical saying you are fit to drive.

 

The company you work for have a legal responsibility for ensuring that their drivers are fit to drive and any slight doubt must be taken seriously. Whether they should offer some occupational health assessment in this situation I am not sure. Depends on your contract, as to whether you are entitled to pay while you are absent as they sent you home.

[Sidewinder]

Must agree with the above. The employer is completely in the clear here since they are acting on an observation/concern expressed by a colleague (irrespective of whether this is true or not). The responsibility for health and safety is sufficient for them to act in the way that they have.

 

It is also true however that they have an obligation to act within the rights afforded under the Equality Act, and since they are aware of a disability (as defined by the EA) should be looking to obtain information from your medical records, possibly an independent assessment and report of your condition, maybe a driving assessment, and consideration of what reasonable adjustments can be made to allow you to work relatively normally.

 

If medical advice and any assessment carried out were to indicate a risk, then the employer could look at options including non-driving work or ultimately capability to remain in work. I say that not to worry you, and I sincerely hope it doesn't come to that, but it is a possibility.

 

So, you need to discuss this ASAP with the employer - of course once you are considered fit to do so. Emphasise that DVLA considers you fit to drive, based on medical opinion and assessment. You are perfectly willing to share your medical reports with the employer and to have an independent assessment of your condition and even a driving assessment if necessary. The employer would be wise to take aome or all of these options up before doing anything further.

[isisandkia1961]

Thanks for the advice but the person who is involved in all this has done the same to others in the workplace either to get extra feathers in her cap or not, I have been in touch with the DVLA and they have told me I am still able to drive, my employers now are looking at the fact that on my sick note the doc has put "stress" as even my doc thinks all this is detrimental to my health, I have told my firm they can look into my medical records as ive nothing to hide but it seems strange that they did exactly the same thing to me 12 months ago and I was found to be fit to drive and carry on as normal but because they are a big company they can treat ppl like something you scrape off ur shoe, thanks again for your advice forgot to say that I haven't got a contract asked for a copy as I remember signing one but they were adamant that I had one until I proved that no one in my branch had a copy

[Sidewinder]

If you can catalogue the previous instances where this person has acted mischievously then it may be worth lodging a grievance?

[isisandkia1961]

Thanks for that sidewinder I am getting on to that grievance as its not only me shes done this sort of thing to

[unclebulgaria67]

Thanks for that sidewinder I am getting on to that grievance as its not only me shes done this sort of thing to

What would she gain from this ? Extra work for her and her friends ? I don't think a grievance will go down well and it may not help your cause.

 

I think it would be better to address the health issue that has been raised and to make sure your employer is happy with you to drive for them,

[SabreSheep]

I woudl also be looking into joining a union who can represent you in the future.

[Sidewinder]

What would she gain from this ? Extra work for her and her friends ? I don't think a grievance will go down well and it may not help your cause.

 

I think it would be better to address the health issue that has been raised and to make sure your employer is happy with you to drive for them,

 

I agree up to a point. Whilst it would be far better to be able to convince the employer of fitness to drive (and on the available evidence this does not seem to be in doubt to those outside of the organisation), if this is the second such instance inside 12 months then it may well be that the employer is having doubts and this could all end up being rather uncomfortable anyway.

 

If the employer's doubts have stemmed solely from the word of on person only, and if there was no just cause for such comments to be made, then a grievance may be entirely in order - after all that is effectively what this person has done to the OP. For certain it is not the way to gain popularity, but if the OP genuinely feels aggrieved, and the alternative looks as though capability is being brought into question, then it may be appropriate.

 

Absolutely agree that the OP needs to know exactly where they stand first and foremost, and I restate that the employer should be given medical evidence, DVLA approval etc, but if it is looking like the employer is seeking to take the OP off the road despite medical advice, then start hitting back.

[SabreSheep]

Also the advantage of union membership is that IF you end up being dismissed later on and it could be a breach of the single equality act, your union *might* take the case on for you and help with the tribunal, inc the fees.

They can also help represent in grievances etc as well

[BazzaS]

Thanks for your reply, I am seeing the docs and hospital for my conditions but I went through the same thing 12 months ago so its not as though my company didn't know about my disability but because one person said I looked tired, but by the way was a lie, the thing that popped into there head was "you have got sleep apnea" and I know that I am fit to drive, I wouldn't risk my life or anyone elses if I thought I would a danger on the road. Going to see some one at the CAB as all this is really stressing me out as all I want to do is get back to work, they have no idea what they are causing me.

 

I suspect the relevant test you can ask the hospital for is a sleep study (polysomnography) performed with you on your CPAP machine, to demonstrate that (treated) you no longer suffer apneic episodes, contrasting this to your (diagnosis, untreated) study.

 

If you are at a centre that offers it, a functional Maintenance of Wakefullness test (such as the OSLER test) would show if you suffer from excessive daytime sleepiness - pretty definitive evidence to provide to your employer but very few centres offer this.

 

As an alternative approach : is your employer's fleet fitted with "black boxes", and if so : is it worth asking if your metrics show an increase in sudden breaking / swerving than the "normal" drivers - as if not on what basis do your employers base their concerns?

[numbers666]

They review the SD card on the machine at the yearly review. It gives lovely figures such as usage and episodes where it has to work on you.

 

They fact that you are compliant and are using the machine makes you fit to drive. If the treatment was failing the the hospital has a duty of care to inform dvla.

 

There would be no need for a sleep text now you are on treatment.

 

You could even obtain the resmed software and upload the SD card yourself on pc or laptop. Pm me if you need it. Assuming you are on the resmed box ofc.

 

On a lighter note, do try not to strangulate yourself on the pipe...

 

http://www.sleep-apnoea-trust.org

 

Are good.... Maybe get in touch too

 

http://www.sleep-apnoea-trust.org/detailed-guidance-to-drivers.htm

[BazzaS]

They review the SD card on the machine at the yearly review. It gives lovely figures such as usage and episodes where it has to work on you.

 

They fact that you are compliant and are using the machine makes you fit to drive. If the treatment was failing the the hospital has a duty of care to inform dvla.

 

There would be no need for a sleep text now you are on treatment.

 

You could even obtain the resmed software and upload the SD card yourself on pc or laptop. Pm me if you need it. Assuming you are on the resmed box ofc.

 

On a lighter note, do try not to strangulate yourself on the pipe...

 

http://www.sleep-apnoea-trust.org

 

Are good.... Maybe get in touch too

 

http://www.sleep-apnoea-trust.org/detailed-guidance-to-drivers.htm

 

So, does the SD card show compliance with the set treatment parameters, or "effective treatment"?.

I suggest it shows the former, but doesn't prove the later, which makes a difference if someone claims "treatment not working"

 

"They fact that you are compliant and are using the machine makes you fit to drive" : wrong.

The fact that the compliance with effective treatment has removed the daytime / excessive sleepiness makes the OP fit to drive. If the OP needed a higher pressure set to resolve their symptoms then the current treatment wouldn't make them fit to drive.

 

The data on the SD card shows the OP to be compliant with using the machine & the pressure set / achieved.

This is enough data, but only IF:

a) the OP says "my symptoms have resolved" and

b) no one else (like the employer!) is suggesting the OP is still symptomatic.

 

If the suggestion (rightly or wrongly!) is the OP is still symptomatic from sleep apnoea then a repeat sleep study (on their current CPAP support) could be used to show their current setup treats their apnoeas : even then, that just shows their apnoeas have resolved.

 

If there is any suggestion of another sleep issue such as idiopathic hypersomnolence contributing, then overnight polysomnography won't help on its own. This is why sometimes the overnight study is followed by a MSLT (multiple sleep latency test) to rule out narcolepsy or idiopathic hypersomnolence, or, if the OP was forced to prove they have been effectively treated : a Maintenance of Wakefullness test could be used (to show that not only were they compliant with treatment / their apnoeas were prevented) but that the end result was that their symptoms of excessive sleepiness were EFFECTIVELY treated.

[Atlas01]

"As an alternative approach : is your employer's fleet fitted with "black boxes", and if so : is it worth asking if your metrics show an increase in sudden breaking / swerving than the "normal" drivers - as if not on what basis do your employers base their concerns?"

 

I would never in a million years invite anyone to look through tracking generated data, i'd put my house on it everyone here who drives would see many bad readings on it and unless you remembered every occasion "oh that was where i car stopped suddenly, a car pulled out, i swerved as kids were messing etc." it will only make you look bad. The employer does not ever need to gauge this against how the rest drive, only the highway code and road traffic act.

 

The only way for me for the OP to prove he is fit to drive is through medical reports, lack of accidents is a factor but their concern is the accident waiting to happen, with the recent bin case in scotland where the driver killed the pedestrians after having a heart attack i know the transport department where i work is very nervy about any know risk for their drivers now and is undergoing a massive health surveillance excercise.

 

The employers position here is simple

 

Risk Assessment :-

Hazard - Road traffic accident due to sleep or tiredness caused by their staff member with a medical condition they were aware of.

Likelihood of it happening. -????????

 

I'm all for employee's rights but if i was a manager here the person would be off driving until i was positive that likelihood was 0% and that i could also prove this in court/coroners on behalf of the employer if one of my employees injured a member of the public where one or more fatalities is a definite possibility of the known hazard.

 

Unless the OP can prove he is as safe to drive as the normal employee i get the feeling this will turn into a medical redeployment case where the employer should be looking at alternative roles in the company.

[BazzaS]

"As an alternative approach : is your employer's fleet fitted with "black boxes", and if so : is it worth asking if your metrics show an increase in sudden breaking / swerving than the "normal" drivers - as if not on what basis do your employers base their concerns?"

 

I would never in a million years invite anyone to look through tracking generated data, i'd put my house on it everyone here who drives would see many bad readings on it and unless you remembered every occasion "oh that was where i car stopped suddenly, a car pulled out, i swerved as kids were messing etc." it will only make you look bad. The employer does not ever need to gauge this against how the rest drive, only the highway code and road traffic act.

 

The only way for me for the OP to prove he is fit to drive is through medical reports, lack of accidents is a factor but their concern is the accident waiting to happen, with the recent bin case in scotland where the driver killed the pedestrians after having a heart attack i know the transport department where i work is very nervy about any know risk for their drivers now and is undergoing a massive health surveillance excercise.

 

The employers position here is simple

 

Risk Assessment :-

Hazard - Road traffic accident due to sleep or tiredness caused by their staff member with a medical condition they were aware of.

Likelihood of it happening. -????????

 

I'm all for employee's rights but if i was a manager here the person would be off driving until i was positive that likelihood was 0% and that i could also prove this in court/coroners on behalf of the employer if one of my employees injured a member of the public where one or more fatalities is a definite possibility of the known hazard.

 

Unless the OP can prove he is as safe to drive as the normal employee i get the feeling this will turn into a medical redeployment case where the employer should be looking at alternative roles in the company.

 

"i'd put my house on it everyone here who drives would see many bad readings on it" : the very reason my advice to the OP was to be compared to the "average" / "normal" driver.

Not "do I brake / suddenly steer" at all, but "do I do so more severely / more often" than usual.