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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44874
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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hi there i have worked for my company for 17 years (18 years

Customer Question

hi there
i have worked for my company for 17 years (18 years in october) last month i was told by my production manager that my attendance was dire as i havnt done a full month this year (im only talking about a day a month at most 2 days not a week etc) and i was also told that if i dont sort it out i will loose my position as team leader (also in the last year i have complained about one of the people on my team and his attitude) i replied that the company knows i have a shoulder injury that i recieved at work (yes its in the accident book) that might need an operation on to which the reply was you are now demoted and on a different shift but your money will remain as is (for the tine being as i expect them to drop that at a later date) as you have personal problems with soneone on your shift and if you need an operation i need team leaders to cover you and thatwill cost the company in overtime wages now since this demotion has happeed i have been put into a different section where the work is heavier , thats the background now my questions are :- if i injure my shoulder again have i any legal recourse? , if i say i cant do a job due to my injury can they sack me under the excuse of we need ppl we can move about even though the job is in another section ? , to me this all seems wrong as i injure myself at work and theres a problem with someone on my shift all this has been reported to management and im the one that looses my position ?.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know what you would like to achieve ?

JACUSTOMER-n4joa224- :

i would like to know my legal position

JACUSTOMER-n4joa224- :

and if the company has created a legal issue or acted illegaly under employment law

Ben Jones :

Thanks for your patience, can you please confirm:

1. When were you demoted?
2. How long has the injury been going on for?
3. Does your contract say you can be demoted?

JACUSTOMER-n4joa224- :

2 weeks ago

JACUSTOMER-n4joa224- :

the injury has been going on for 18 months as the doctors have given me anti-inflams then physio then back to the docs for more pills as the physio didnt work i was then given a steroid injection that didnt work at this time one doctor refused to give me more anti inflames as i had been on them for to long and they looked at codien and other pain killers and nerve blockers then i was referd to the hospital where i had another steroid injection this one helped but didnt cure it i was then told that i neeed to see the physio at the hospital as they work closer with the surgeons

JACUSTOMER-n4joa224- :

as for my contract as far as im aware it doesnot say i can be demoted nor is there a performance clause or a review clause and since my demotion i have not signed a new contract

JACUSTOMER-n4joa224- :

just for a little bit more info my production manager is the factory manager and the personel manager and the qc manager (he has many hats to wear) above him is the owner and all forns of managment stick together and back each other up and i know they use an out sourced company for legal advice and i can try to get the name of this company if needed ?.

JACUSTOMER-n4joa224- :

and there is no union in the factory as in they do not sponser/advise on unions but they wont stop you joining a union (and no im not a member) if an official meeting is needed they will only allow a union official or someone from the shop floor. hope this extra info helps ?,

Ben Jones :

Thanks for clarifying. First of all your employer cannot demote you without having the contractual right to do so, otherwise their actions will amount to a breach of contact. You are employed to do a particular job, the employer cannot change your terms without your consent and without the contractual right to do so. If they believe your attendance falls short below what they expect from you, they can take performance or disciplinary action against you but not change you terms like this.

Your rights will also depend on the nature and severity of your condition. If you can show that you have a disability then you will have extra protection. In the legal sense of the word, disability can have a broad meaning and there is no single list of conditions that qualify. Instead, to establish whether a person is disabled for legal purposes, they need to establish whether they meet the legal definition of ‘disability’.

The Equality Act 2010 (“EA”) defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition, including progressive conditions and mental conditions such as depression;
  • Substantial effect – the effect must be more than minor or trivial;
  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;
  • Normal day-to-day activities – these are not defined but would include anything considered ‘normal’ in a person's normal daily routine (e.g. eating, washing, driving, walking, shopping, etc.)

If a person satisfies the above elements, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated less favourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples of what could amount to a reasonable adjustment:

  • making adjustments to work premises;
  • allocating some of the employee’s duties to others;
  • transferring the employee to fill an existing suitable vacancy;
  • altering the employee’s hours of work;
  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;
  • acquiring or modifying specialist equipment;
  • providing supervision or other support.

If someone who is disabled is being treated less favourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. The first step would be to raise a formal grievance. The next step would be to consider whether a claim for disability discrimination should be made in an employment tribunal (bearing in mind that the time limit for claiming is only 3 months from the date of the alleged discriminatory behaviour taking place).

However, once they have made the necessary reasonable adjustments and you are still unable to perform your job they can eventually consider taking formal action under capability laws. They can potentially consider dismissal but before they do so they need to try and offer you any other suitable jobs that may exist in order to try and avoid having to go down the dismissal route.

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