Can an employer ignore a Doctors recommendation?

[Oily]

Hi all,hope someone can give some advice on this.

 

Here's a brief history,I had a subacromial decompression operation back in Dec.2014,I returned to work in Feb.2015,by this time they had introduced a night shift on a rota of 1 in 9 weeks aswell as the 6/2,2/10 shift.I managed to do 2 night shifts in 2015,by the end of 2015 my shoulders have gotten worse and sleeping has become more difficult,averaging 5/6hrs of interrupted sleep each night.

 

This year they have increased the night shift rota to 1 in 5 weeks,I did my first one at the beginning of January where i averaged 3hrs sleep per day over the week.

 

I went to see my manager and asked if i could be taken off nights,they came back to me and said if there's a medical reason they would look into it.So I went to my doctors,they prescribed me some tablets to ease the pain and aid sleep on a short term basis.I'm also due for another operation in March.

 

The doctor gave me a doctors note/recommendation to be taken off nights until my shoulders are sorted out.Problem I have is that I've no idea how long this will be and work want me back on nights asap otherwise I could be out of a job,with work stating I'm not fulfilling my contract(I'm on an annualised hours contract)

 

The works doctor has seen my note and said I should have no trouble doing the work but didn't understand it wasn't the work that was making me ill,it's the lack of sleep.

 

I hope thats clear to understand,there are a few things in my doctors note I don't wish to disclose but believe me it was strongly worded.

 

Any help appreciated

Edited February 26, 2016 by citizenB
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[unclebulgaria67]

I think your employer has a point and you would need something more to validate not working nights. Your medical condition does not appear relevant to the actual work.

 

Can you not put up some really good backout curtains that make your bedroom totally dark during the day ? Can your own Doctor help with medication or advice about how to gain decent sleep while you have this condition ? Would changing your bed mattress help ? Etc.

[Oily]

I think your employer has a point and you would need something more to validate not working nights. Your medical condition does not appear relevant to the actual work.

 

Can you not put up some really good backout curtains that make your bedroom totally dark during the day ? Can your own Doctor help with medication or advice about how to gain decent sleep while you have this condition ? Would changing your bed mattress help ? Etc.

 

Trust me I've tried everything but it's the pain I get in both shoulders that stops me from sleeping,more so during the day.My condition doesn't effect my work but the lack of sleep is making me ill when I do nights.I can get by,just,on the 6/2 , 2/10 shifts but these nights have just killed me.Thanks for your reply.

[unclebulgaria67]

Trust me I've tried everything but it's the pain I get in both shoulders that stops me from sleeping,more so during the day.My condition doesn't effect my work but the lack of sleep is making me ill when I do nights.I can get by,just,on the 6/2 , 2/10 shifts but these nights have just killed me.Thanks for your reply.

 

You need to get a full medical report on your current situation if you want to take this forward. Speak to your GP about what reports might be available. Suspect you might have to pay for it. You then provide it to your company and see what happens. If working at night causes any health and safety issues, then the employer cannot ignore such a report.

 

If you are a member of a union or can join a union, they might be able to help.

[think about it]

You say you're due back in theatre in March (so anytime in the next couple of weeks really) after which, you'll need time to recover from surgery and hopefully you'll be back fighting fit?

 

Perhaps a discussion with your employer re-assuring them that as soon as you've recovered you'll be back on the rota might keep them satisfied for now.

[Oily]

You need to get a full medical report on your current situation if you want to take this forward. Speak to your GP about what reports might be available. Suspect you might have to pay for it. You then provide it to your company and see what happens. If working at night causes any health and safety issues, then the employer cannot ignore such a report.

 

If you are a member of a union or can join a union, they might be able to help.

 

I paid for the note I gave my employers. I'll have another chat with my doctor to see if anything else can be done.

 

You say you're due back in theatre in March (so anytime in the next couple of weeks really) after which, you'll need time to recover from surgery and hopefully you'll be back fighting fit?

 

Perhaps a discussion with your employer re-assuring them that as soon as you've recovered you'll be back on the rota might keep them satisfied for now.

 

Well i wouldn't say fighting fit as my left shoulder is going the same way as my right,I'm having injections in the left at the same time has having my right shoulder looked at.

I've tried 'reasoning' with my employer saying I'll do 1 in 10 night shift but they not interested.They're worried if they let one person off then it'll open the flood gates!

[think about it]

I'm curious as to how different the night shift is to the others that don't seem to affect you so badly. Could it be that you aren't suited to working nights at all? Playing devils advocate, I can see that the employer will be looking for actual differences in the type of work when one shift seems to have a greater physical impact on you than the others. Not everyone is suited to night working and it seems that the disturbance to your sleep is as much of an issue as the pain you're currently feeling. I fully understand how getting good rest helps cope with chronic pain but there comes a point where you may have to ask if you can fulfill the requirements of the role in the long term and keep your health where it needs to be. If you've tried the usual sleep hygiene tricks to help you through the nights then it may be worth firing up your cv.

[Oily]

I'm curious as to how different the night shift is to the others that don't seem to affect you so badly. Could it be that you aren't suited to working nights at all? Playing devils advocate, I can see that the employer will be looking for actual differences in the type of work when one shift seems to have a greater physical impact on you than the others. Not everyone is suited to night working and it seems that the disturbance to your sleep is as much of an issue as the pain you're currently feeling. I fully understand how getting good rest helps cope with chronic pain but there comes a point where you may have to ask if you can fulfill the requirements of the role in the long term and keep your health where it needs to be. If you've tried the usual sleep hygiene tricks to help you through the nights then it may be worth firing up your cv.

 

You may have a point about not being suited to nights although I don't fancy looking for another job at my age as I was hoping this one would see me through to retirement

[Sidewinder]

Just be aware that doctors note or not, your employer can move towards capability dismissal should they wish to. If you are not medically (or otherwise) capable of fulfilling your contract, then dismissal is an available option, subject to proper procedure.

 

You need to make sure that you discuss your condition fully with your employer, backed by up to date medical advice and offer a reasonable prognosis as to when you might be fit to work. Discussing phased returns, alternative duties which might not aggravate the condition etc are a part of that, but ultimately being unable to work nights is unlikely to work in the long term if that is what your contract requires.

[Oily]

Ah,my annualised contract,this thing changes depending on which way the wind is blowing that day Nights were introduced last year,been working there since 2010,no mention of nights in my contract only that I've got to work 37.5 hours from Sunday to Saturday