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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44875
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have Plantar fasciitis and a not from my GP to my boss regarding

Customer Question

I have Plantar fasciitis and a not from my GP to my boss regarding open toed shoes and a shoe with a heel to help with my feet. My GP wrote to my boss explaining my position so that I could make it easier on foot in the workplace. Unfortunately our school policy states flat shoes no open toes or heels. I work in a SEN school which has wheel chairs hoists etc... I have worked d here for 32years and the policy has been put in place for about 8 years. My boss is not happy with this so has written to my GP without telling me until I was called into her office and she handed a letter to me not a copy which went to my GP which I had asked for. After a conversation and I had asked her what was I meant to do she continued to tell me to leave that the conversation was over and then shouted at me really loudly and staff heard it in the corridors. What can I do I am not happy about this and had a day off work as I was upset never before have I been spoXXXXX XXXXXke this in all my years service from any managers or staff Please help.

Jane
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What are you unhappy with - the employer's behaviour at the meeting or their refusal to allow you to wear the shoes?

JACUSTOMER-kt0ns3t4- :

Both

Ben Jones :

how does your condition affect your day to day activities?

JACUSTOMER-kt0ns3t4- :

My feet become very sore and painful especially when the under floor heating is on.

JACUSTOMER-kt0ns3t4- :

I am not happy that my Headteacher wrote to my GP without consulting me either

JACUSTOMER-kt0ns3t4- :

Are you still online or have I lost you?

Ben Jones :

Your rights will depend on whether you can show that your condition amounts to a disability in law. 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;

  • 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.


 


So in your case you can argue that allowing you to wear these shoes is a reasonable adjustment. Unless there was a health and safety reason why this may not be possible, there is not really much the employer can rely on to refuse such a request.


 


In relation to the way you were treated at the meeting, you are able to complain to the employer by following the official grievance procedure. This can also include a complaint about writing to your GP without consulting you first. The employer will have a duty to formally investigate this complaint and take appropriate action. If no resolution has been reached about the shoes, you may also include this in the grievance

JACUSTOMER-kt0ns3t4- :

My employer is stating that due to our school policy it is due to Health and Safety reasons I have to wear appropriate footwear. Even though she had recommendations from my GP. This has been on-going for some years now. I feel it is beomming abattle of two strong characters but I can't mentally take it any longer

Ben Jones :

ok but what are the health and safety reasons - there must be some genuine concerns, not just because there is a policy

JACUSTOMER-kt0ns3t4- :

yes she states even though my GP suggests more comfortable shoes with a heal and open toed shoes, in order to protect my feet and in fairness to all staff the advice to wear shoes with closed-in toes remain the same as before. Several staff have mentioned having hot feet due to the under floor heating. They address this by temporarily changing foot wear during breaks. I don't know why she is telling me this in a letter she sent to me?

JACUSTOMER-kt0ns3t4- :

Also because of the management of pupils and advice given in the People Moving and Manual handling training.

Ben Jones :

to be able to rely on health and safety as a reason to refuse this adjustment they need to show there is a real and valid justification why health and safety will be compromised. For example, the conditions you work in are made unsafe by you wearing such shoes, let's say you need to be on your feet a lot and to walk on uneven ground and having these shoes may make things unstable for you and make you prone to trips and falls. That's just an example but you get the point

JACUSTOMER-kt0ns3t4- :

She won't compromise that is the issue, she is saying it is to protect my feet when I'm moving equipment such as hoists, pushing wheelchairs supporting pupils with walking frames and for staff to move quickly when needed to keep pupils safe when they may be exhibiting challenging behaviour. Bearing in mind I am in a class where there is no challenging behaviour just wheelchairs etc. Therefore she has told my GP in writing that she will implement her recommendations that I wear shoes with a moderate heel and my Head teacher will review the situation is a few months. Is she able to do this Even if I go to my GP again if my feet still painful.

Ben Jones :

whilst you have rights, you cannot force the employer to recognise or implement these. It means that if you have to challenge it further you have to consider the grievance first, then the legal route. It appears they are agreeing to allow you to make these adjustments and review it in a few months, which is better than a direct refusal to allow any changes at this stage. So see how these few months go and evaluate your position if they decide this is not working and try to make further changes or return to the original arrangement

JACUSTOMER-kt0ns3t4- :

She is still refusing me to wear open toed, and open backed shoes so that the air can circulate in my shoes. As suggested by my GP

JACUSTOMER-kt0ns3t4- :

As it is I measure my heel to check it is not more than 2inches as my head teacher has recommended so I'm following that instruction.

Ben Jones :

ok I understand but as mentioned you cannot force them to accept that and allow it, so if the grievance does not work, your only option is to consider claiming for disability discrimination by arguing a failure to make reasonable adjustments

JACUSTOMER-kt0ns3t4- :

How do I go about this?

Ben Jones :

the grievance is a formal complaint made to your employer - you need to check your workplace policies to see if they have a grievance policy and you need to follow that. the claim is made in the employment tribunal and must be made within 3 months of the alleged discriminatory act complained of, so in your case the last time you were refused these adjustments, so do not delay it.

JACUSTOMER-kt0ns3t4- :

Can I ask that my duties of pushing wheel chairs hoisting etc. be removed short term?

Ben Jones :

yes that can also be considered a reasonable adjustment - you can refer to the list I included above as examples of what such adjustments can include

JACUSTOMER-kt0ns3t4- :

What if my Head teacher says no as it will have a 'nock on' effect to the rest of the class and I won't be fulfilling my duties.

Ben Jones :

again, you cannot force them to make these changes and it goes back to the grievance and the potential discrimination claim

JACUSTOMER-kt0ns3t4- :

ok thanks, XXXXX XXXXX meet with my union for further advice but thank you very much. I f I want advice regarding this issue will I have to pay again? or can I keep this conversation open?

JACUSTOMER-kt0ns3t4- :

It would be nice to know that I can contact you again

Ben Jones :

you can contact me at any time - if you could please rate today's service then the conversation will not close and you can always come back if necessary. i can answer a few follow up questions as required but if you require more detailed advice then you will have to post it as a new question

JACUSTOMER-kt0ns3t4- :

Thanking you

JACUSTOMER-kt0ns3t4- :

Jane

Ben Jones :

My pleasure, all the best for now

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