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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48190
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I have M.E, I have been sent to occupational health 3 times,

Resolved Question:

Hi, I have M.E, I have been sent to occupational health 3 times, my employer wishes to reduce my hours which is fine but I know the hours they have proposed won't help my condition, but of course it suits the business, when they say they are trying to support me. I have a son of school age, and with the hours they have proposed he wouldn't be able to live at home and I wouldn't be able to be a mother. They say it is about my health and not childcare but the 2 are related, I am supposed to trial these new hours which I know already won't help, can I refuse? can they refuse if I put in for different hours? I don't know who to contact. Many thanks
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

since oct 2010

Ben Jones :

Who proposed the new hours - the employer or OH?

Customer:

the employer, I feel it has nothing to do with helping me as we are very short staffed and another person has just left and so I am the only other person to cover late shifts etc, from the first OH report I was put on fixed shifts which I am still on, but have had many absences and so reduction in hours has been advised

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

Whilst your employer could suggest a change in hours or duties in order to try and help you with your medical condition, they cannot just enforce that as they see fit and it will have to be something which is also suitable for you and has been reached in agreement with you. The law requires the employer to make reasonable adjustments if an employee is classified as disabled and this would be the case here. The adjustments must be suitable for the employee and assist them in reducing the effects of any issues they may be experiencing in the workplace, taking into account their personal circumstances at the time.

So you can refuse to do the hours they have proposed and make it clear that they do not amount to a reasonable adjustment because even though they may help you to an extent with the condition, they are not reasonable as they have not considered your overall circumstances and the effect it will have on your general life.

The employer would need to have a very strong and clear case to argue that they cannot accommodate you with changes that are also helpful to you considering the personal circumstances at present. You can ask them to reconsider their position and if you reach a standstill in negotiations you may also consider raising a formal grievance. The final option for you would be to make a claim for disability discrimination in the employment tribunal, arguing that the employer has failed to make reasonable adjustments when they did not have a clear case to justify that.

Customer:

Even though they are short staffed? As they already said it is about my health and not a childcare issue, which I am waiting to get answers in writing as they have not put any reasons in the proposal. I am just fearful of putting a foot wrong and losing my job as they have probably been advised by their own legal team

Ben Jones :

they have to take all reasonable steps to facilitate whatever reasonable adjustments are necessary - if these cannot be made then they do not have to do them but at the same time you do not have to accept something which is not suitable for you

Customer:

Then I would have to stay at full time hours with a lot of absence because there isn't enough staff which is not even my fault

Ben Jones :

if there are not enough staff and that means the employer cannot offer you reduced hours then you cannot necessarily blame them because they can only work based on what the current situation is. You could say that they should get more staff in but that may not be easy to argue.

Customer:

I understand it is a business, they say they are trying to get more staff but they won't take anybody on. Would it be better if I just apply for flex hours for childcare?

Ben Jones :

that is also an option but the employer can reject that on any of the following grounds:



  • Planned structural changes

  • The burden of additional costs

  • A detrimental impact on quality

  • The inability to recruit additional staff

  • A detrimental impact on performance

  • The inability to reorganise work among existing staff

  • A detrimental effect on ability to meet customer demand

  • Lack of work during the periods the employee proposes to work

Ben Jones :

you have nothing to lose by applying for it but your rights will be stronger in terms of pushing for reasonable adjustments for disability

Customer:

I do apologise for asking so many questions, is there anywhere in the equality act I can look at?

Ben Jones :

The EA only deals with the duty to make reasonable adjustments if you are disabled, it does not go into great detail on how the reasonableness is assessed, which is something you will have to find in case law but that is going to be a separate issue as it will involve some time researching

Customer:

So, I just have to keep fighting with management and bringing up reasons as to why those hours will not suit, but they could come up with a million reasons as to why the hours I think would suit are refused and then be forced to hand in my notice, I don't want to go down the route of formal grievance as I think it is such a small workforce that it would create an atmosphere, and then that would hinder in applying for another job

Ben Jones :

that would not hinder you in applying for a new job because you cannot be treated detrimentally for doing so

Customer:

Many thanks for your help this evening, I may be back in the future when I have had another meeting with them

Ben Jones :

you are most welcome and you can always request me by name in your question for future help

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