Reasonable Adjustments - Occupational Health

[sangie5952]

@king12345 Where did I read that you can have union legal support or a lawyer of your choice that you pay for? That would be in the rule book of every union in the country. You can only be represented by one or the other - not both.

 

The OP here has, regrettably, chosen not to join a union anyway, so I don't think they'll be up for the kind of class war that your responses always propose. You do not need to lecture me about trades union history, what price workers paid to win rights, or anything else. I am well aware of these points. What I am ALSO well aware of is that the vast majority of workers these days would rather sit on their backsides watching reality tv than go to a union meeting or engage in any form of resistance to the erosion of those rights. For the best part of the last 30 years the vast majority of the new rights have been won, usually by unions, in courts of law - not on picket lines. To win in courts of law you regrettably require a case, evidence, and facts. That may be unpalatable, but courts of law are quirky that way.

 

There is a huge difference between saying that someone should give up, which I would only say if it was clear beyond doubt that they had no claim, and pointing out the weaknesses, irrelevancies, and errors in their argument construction. Unless those things are addressed to the satisfaction of a court, then they will lose their case. So doing that is legitimate and helpful advice. You may not think so, but continually attacking my advice on the basis that you don't like it does not help anyone.

 

Finally, I'd suggest that you examine the actual basis for the "winning" of many of the most recent iterations of the rights you list. Because actually, most of these rights were imposed on the UK by the EU and the ECJ. Regrettably they weren't really fought for by unions and their members, and I'll not be holding my breath waiting for the revolution as the government strips then away again in the period after the UK leaves Europe. I'd love to think that the workers will rise up to defend and improve their working conditions. When the barriers go up, I'll be there. Unfortunately, I suspect I'll be the only person there, because everybody else will be busy watching the latest dramatic fall out on Strictly Come Dancing....

[Flesh Gordon]

Hello, I don't have a 'dog in the fight' either way on OP issue, and all I can offer is my best wishes, but I really feel an objective insight here might help illuminate Sangie595 as to why she continues to get troublesome replies to her posts.

 

I know nothing about Employment Law, however I & many of my colleagues have been in numerous lowly work situations over the years where we felt desperate and turned to the internet, even sites like CAG seeking advice. Helpful constructive 'letting down' of expectations when someone is feeling vulnerable is always appreciated.

 

Sangie - you may not appreciate hearing this, but I've read the last few months of your posts, and they are all WITHOUT EXCEPTION negative and along the lines of "well, you're clearly an idiot, the boss has all the power and to ever think differently is to reinforce the fact you are an idiot and it's time to look for another job". I think that basically paraphrases every post you've ever made here!!

 

So, whilst I don't doubt for a second your Union credentials and experience, I feel your approach to responding to nervous people's enquiries shows a lack of not only empathy but self-awareness too.

 

I hope site team will let that this post stay long enough for you to read and have the right of reply, before they delete, because I genuinely believe it may serve you well in your real life beyond the keyboard.

 

Best wishes,

 

FG

Edited February 8, 2019 by Andyorch
edited

[obiter dictum]

Apologise if already covered but??

 

Has Occupational Health given a decision in their report that they consider your condition to be a disability under the Equality Act 2010??

[pukpuk]

Apologise if already covered but??

 

Has Occupational Health given a decision in their report that they consider your condition to be a disability under the Equality Act 2010??

 

 

Hi Obiter,

 

Yes they have, but to get them to mention that was a fight. In each call they seem to be reluctant to discuss reasonable adjustments and never discussed my role or any impact on my health or vice versa.

 

Sangie does have some good points but the key here is that very few employers would admit to their neglect but I'm sure that what has happened can't be right and has resulted in my symptoms and thus far the medical advice I have been given backs that stance. I'm not to bothered if they give me the boot and someone impartial like a judge has a look at the facts and then decides and the outcome is in the public domain.

 

Where I find hope is that whenever anyone impartial (Medics, EQC, ACAS, FSO etc) they all side with me. I'm simply trying to get some balance and the above replies do help with that. In terms of Unions I'm sure there are good and bad reps but the examples I've heard in my company are pretty bad. I don't see the benefit if you are able to get a good understanding of the law yourself.

 

Thankfully, I have managed to get on the road to recovery to be able to deal with this otherwise I would still be in an extremely bad place.

 

In terms of the report, I can request it via SAR - which again shows my employer just placing obstacles in the way rather than just allowing OH to give me a copy. Can't see anything wrong with having visibility of something to ensure it is accurate and contains the relevant information before releasing it or declining consent.

[obiter dictum]

Have a look at section 20 Equality Act 2010

[pukpuk]

Have a look at section 20 Equality Act 2010

 

I have and both sections 15 and 20 seem to be applicable but there may be others. Its pretty clear that the behaviour and their treatment towards me is an attempt to make me quit and its pretty sickening if you have experienced it and everyday is like a battle.

[king12345]

@Flesh Gordon That's what I tried to put across many times by challenging the resigned attitude and siding totally with employers.

[king12345]

@Sangie595 You say: "You can only be represented by one or the other - not both."

This is correct.

But you previously said: "if you did take independent legal advice, you would lose the right to union representation. It's the union, or another lawyer. Not both."

This is incorrect.

Anyone can take legal advice, which is different from legal representation.

To make it clearer, any union member can take legal advice from any source they deem fit.

This might assist the union in defending the member.

Differently from employing a solicitor or legal adviser to represent them.

In this case the union would step aside.

I am surprised that an experienced union official could misuse words so easily.

Most cases I represented and followed were won on words and misquotes from employers and witnesses.

Example: closing the till is different from closing the account.

On this little difference many disciplinary have been dismissed.

Further, a good union official would be used to dismember documents to find flaws and consequently would also be used to quote correct words.

[king12345]

Op, don't know if it's been asked before, but as you're not in a union, have you checked if you have legal protection with your home insurance or any other insurance?

Usually they don't cover existing cases, but it's worth checking in case your cover started before this case.

[sangie5952]

I find it fascinating that a bunch of experts on disability and employment law can consider it appropriate to use "developmental disorder" as a term of insult. This site is rapidly becoming nothing more than a place to post offensive remarks and insults aimed at anyone you don't agree with. Telling people what they want to hear, with no objective consideration, is not helpful or realistic. But have at it. My job and my real life are secure, and frankly I don't give a damn about the personal insults of a few keyboard warriors who have never set foot in an employment tribunal.

Edited February 8, 2019 by sangie5952
edited

[king12345]

Sangie, if it's true that you are the bee's knees of union affairs, you should be able to look at criticism and question your own doing.

When one person has something to say it's time for reflection, when more than one joins in, it's time to look at the common denominator.

I don't claim to be anything rather than a union activist who has defended and advised members and non members without getting even an hour out of it, differently from reps.

Not claiming to be an expert like you.

[ericsbrother]

OP, you say that you want them to apply all of this as you see yourself recovering in 6 months but then guard that statement by saying more about the long term self assessed prognosis.

 

So what do all of the medical experts say about your long term capabilities and treatments? CBT tried and discounted so that creates barriers in itself so what do they recommend? Drug therapy ( works well for some, useless for others). TYhe other problme you ahve is the permanency of your condition. If you can get better in 6 months then your emplpyer may well take you at your word and seek dismissal on capability grounds at that time if there is no return to an acceptable level of productivity.

 

An observation from my own past is that you will see a rosier future as far as returning to work goes than is actually realistic. I spent 2 years faffing around in this sort of mess before I was diagnosed with MS and eventually accepted that i want going to work full time ever agin and certainly not in the role I had so entered into a compromise agreement with my employer that gave me enough to live on for a while until I sorted out my new reality.

 

I'm siding with Sangie on this one if it gets as far as a tribunal hence making the suggestion of seeking an exit deal. You dotn ahve to go for this right away but leave them with the thought that you would be willing to enter into a compromise if it doesnt work out in 6 months. It will be cheaper for them than a fight at an ET in terms of hours spent on that rather than other things and they wont need expensive lawyers.

 

Now can you afford to take this path is the real question, getting another job later on isnt that difficult if you have low outgoings.

Edited February 8, 2019 by honeybee13
Paras, typos

[AndyOrch]

Can we please keep this civil...its of no a assistance to the OP.

 

Andy

[sangie5952]

Can we please keep this civil...its of no a assistance to the OP.

 

Andy

 

I agree entirely. Disagreeing with interpretation or viewpoints is opinion. Using that to make inappropriate comments about people and insulting their intelligence, mental health and employment, which is now the standard "reply" constitutes bigotry, discrimination and bullying.

 

For what it is worth, at no point have I ever said that the OP here has no case or that the employer is correct. My points related solely to correcting an erroneous understanding of the OH role and GDPR, and to pointing out that precedent is not a factor in reasonable adjustments. In other areas of law it may be - in reasonable adjustments it isn't. However, I'd agree with ericsbrother. In the full context of information available on the threat from the OP, there is no way that this ends happily. Being objective, yes, the OP very clearly does have a disability and I have no doubts on that matter. But that does not entitle them to anything. Whether adjustments are reasonable are the issue, and knowing nothing about the employer, nobody can say or not. On the other side of the tale is an employee who has had, albeit through no fault because this is never about fault, several months off sick, is not fit to return to their employment, may never be fit to return, and who appears to be asking the employer to treat accepting that uncertainty as a reasonable adjustment. They'll comes back to work, but on their own terms, and only if sickness is ignored. In other words, they might come back, maybe, for a bit, if they feel up to it.

 

Now that is the story the employer is hearing - is it any real surprise that they are balking at that? So unless that story can be mediated and given a spin that they can accept, they aren't likely to budge very far. They may well be willing to accept paying the OP off - but that deal, like any possible tribunal award, is never going to be in the realms of fantasy. So the OP can move for a mutual termination. Or they can mediate their expectations and sell the employer a story that they can negotiate with. Or, of course, they can take their legal chances with a tribunal claim, which, win or lose, will mean they are out of a job either way, and which may have other consequences as well - not a reason to not do it, but definitely a reason to have every side of the advice, and not just one rosy tinted version.

[king12345]

Nobody mentioned a rosy tinted version or ending to the op's story, but one thing that must be very clear:

DO NOT GO DOWN WITHOUT A FIGHT.

Accepting defeat and avoiding negotiations is the wrong advice.

No other way to put it.

Again, coming from a union official this is incredibly shocking.

Cases like this should be bread and butter for any union rep who should go to the table with 100% in order to gain 20%.

It's always been this way in all negotiations.

Going to the table asking 1% will definitely result in gaining nothing.

Good union reps have defended the undefendable and negotiated impossible deals for decades.

A dying breed maybe...

[obiter dictum]

It is a misconception you have to be covered under the act for reasonable adjustments to be made. They have to be made under a statutory duty of care with risk assessments

[pukpuk]

Good point about the household insurance, I'll call them tomorrow fingers crossed!

 

SANGIE, I'm a bit confused, are you saying that RA's for mental health can't be a permanent measure? As long as reasonable I would have thought they could be. In any case I don't know how my disability will affect me in the future, although I have been told that I will make a full recovery and I am on medication.

 

In terms of what I have asked for, there is no negative cost, disruption or efficiency issues caused to the business. So there shouldn't really be any issues.

[pukpuk]

Also SANGIE,

 

I haven't asked for disability sickness absence to be excluded rather that it be taken into consideration into any performance/absence triggers, this is important as they can provide extended trigger points or some form of disability leave if I find it difficult at times. Just an agreement it's up to them if they want to discuss or suggest alternatives I am not using a rigid approach with them rather trying to come to some kind of a fair mutual agreement.

 

I'm considering getting Access to Work involved to carry out an assessment anyone had any experience of this? I heard that its impartial and I'd be happy to use their guidance.

[king12345]

The employer is not obliged to agree to anything, in fact the could use two simple words to deny any adjustments: "business needs"

However, many employers allow reasonable adjustments for various reasons but one thing is sure, if you do not ask and negotiate you will not get anything.

Your approach seems the correct one, give them a solution which is commercially viable and it would be more difficult for them to say no.

[obiter dictum]

Sorry have to disagree

 

Regulation 3 Management of Health and Safety at Work Regulations 1999

 

Even Section 2 Health and Safety at Work Act 1974

 

What is reasonable and proportionate in achieving a legitimate aim

 

Although you are correct that the employer does not have to instigate any reasonable adjustments if not covered under the act, If the employee or any individual not in the employ of the business suffers a detriment because of that decision when previously notified , the employer can and will be held liable in any civil/criminal proceedings

[king12345]

That refers to health and safety, not disability discrimination.

In the DDA the word "reasonable" is repeated several times, hence the need for negotiations.

Example: a small removal company employs the boss who deals with admin, contracts and all logistics, then 2 people who do the removal (including heavy lifting).

One of the 2 removal employees breaks their knee playing football and won't be able to ever lift heavy weights.

It is not reasonable for the company to keep them on desk duties as there is no position for them.

Differently if the company is a massive multinational with thousands of sorting offices.

In this instance it is reasonable to believe that a redeployment would comply with the DDA (the employee is now permanently disabled).

The word "reasonable" is the key.

[obiter dictum]

If a person has any condition that has the capability to impact health and safety, be it the are disabled or not, the obligation under statute is on the employer and employee to limit that harm. Disabled or not. That includes putting in control measures where and when appropriate to limit possible harm

 

And for the record no such thing now as the Disability Discrimination Act (DDA)

 

It is the Equality Act 2010

Edited February 9, 2019 by obiter dictum

[sgtbush]

I've been resisting to comment on this thread, but its gone so far off topic its of no use to the OP.

 

The employer only has to do what is reasonable, and that's I they are a good, people orientated employer.

They could trump everything by saying "business needs" and dismiss under capability issues.

 

I'll take Thi to the nth degree and play devils advocate here.

 

A window cleaner is employed by a company. The employee has an accident at work and is now unable to walk and uses a wheelchair. The employers liability insurance pays compensation and covers costs etc.

Is it reasonable now that the employer is forced to carry on employing them with adjustments like a crane of some description?

 

I'm pointing out the difficulties on defining reasonable.

[obiter dictum]

And in rebuttal capability was never mentioned or dismissal being reasonable or proportionate. The issue was putting in control measures to limit further harm to enable the employee to stay in the job. Dismissal on capability has never been in doubt as a last resort and have stated nothing to the contrary

[king12345]

The op never mentioned health and safety implications in this thread.

Disability has been the main subject.

@sgtbush You're 100% right.

That's what I tried to explain in my previous post, but maybe it was not clear enough.