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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46773
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hello Following on from a recent disciplinary hearing at work

Resolved Question:

Hello
Following on from a recent disciplinary hearing at work - in which I feel I was singled out for different treatment to my colleagues - I was given a final written warning and deployed to a different team within my division. I have been on sick leave since July 2013 and my health condition is registered with my employer as meeting the Equality Act. I received a letter last month from my employer deploying me to a site twice as far as my current location. I have been diagnosed with a condition called Aspergillosis (my asthma is the protected characteristic), which is exacerbated by pollen and woodland plantation. The site in question is surrounded by woodland and when I worked there previously I had episodes of asthma. I replied that this was unsuitable as a result. The reply from my employer was that this was not a "redeployment" (the word I'd used in my letter) but was merely a business decision based on the outcome of the Disciplinary. Although the manager in question said she was unable to comment on my health needs until she receives an Occupational Health report from my consultant, she still seems determined to deploy me to this site. My consultant is concerned that any further asthma attacks - especially as I am in the recovery stage from the last attack - will cause long term damage to my lungs. I feel my employer is being totally unreasonable here. What rights do I have here? thanks.
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. How long have you worked there for?
Customer: 8 years
Ben Jones :

Thank you for that I have a short meting this morning and will get back to you with my advice on how to proceed with this this afternoon .

Customer: Are you able to provide an answer?
Expert:  Ben Jones replied 3 years ago.
Hello, many thanks for your patience. First of all you must consider whether the move is allowed under your contract of employment. The employer may claim that this is driven by the outcome of the disciplinary but unless your contract states that you can be moved as a result of being disciplined, or for any other reason, then assuming that you had a specified workplace, the employer cannot really change that because otherwise it could amount to a breach of contract (regardless of whether they use the disciplinary as the reason).

Next one must consider the protection you get through the Equality Act and the fact you are classified as disabled. The specific protection you would be relying on is the employer’s duty to make reasonable adjustments to try and assist you with your condition and the way it affects you in the workplace.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances of the employer, their business, the potential impact on other employees, the available resources, etc. Whilst legislation does not currently provide specific examples of what adjustments can be made, the following are examples that have been considered reasonable in case law over time:
• 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, etc.

In your case you may certainly argue that not moving you to a site that exasperates your condition would be a reasonable adjustment. So even if your contract allows for this move to take place, the employer should still be mindful of how it may affect your disability and consider that when making their decision. Therefore, moving you without even thinking about these factors could amount to a failure to make reasonable adjustments, which in itself is potential disability discrimination.

You may challenge the employer’s actions through a formal grievance, alternatively if that does not work the final options are a claim for disability discrimination or as a last resort – resignation and a claim for constructive dismissal.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 3 years ago.

Hello


Thank you for your reply and the information.


I haven't seen a copy of my contract since I began working there about 8 years ago, I do recall it says I may be required to work at any site but in practice this never happens to anyone, in fact I can't recall in that time anyone being moved to another site involuntarily.


 


The Occupational Health doctor is writing to my consultant, who I've already informed about my employer's plans, I'm concerned the OH doctor will be selective in favour of the employer as I've had difficulties with her before. If she does recommend that this move should take place against my wishes would any discrimination claim I make at a tribunal make be weakened by that? And if I refuse to go there against my employer's wishes on the grounds I think it'd damage my health, could I dismissed?


thanks.

Expert:  Ben Jones replied 3 years ago.
If you have had difficulties with this particular OH then being able to show that as the case and that you have been treated unfairly in the past could actually help your case this time round. In terms of potential dismissal, whilst the employer cannot be stopped from going down that route if they really wanted to, the key is whether doing so would amount to a fair dismissal, which is something you are protected against An instant dismissal in these circumstances is unlikely o be fair and the employer should at least try and resolve this with you first, and perhaps go through warnings before considering dismissal. So if they decide to go down that route, it could be challenged.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Expert:  Ben Jones replied 3 years ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks
Customer: replied 3 years ago.

Thanks for this, just one final point before I close and rate, following on from what you said about my employment contract, I obtained a copy of this today. Not only is there nothing in there about being moved as a result of disciplinary, but the contract is for a different role that I had at a lower grade, a different site (in fact, the one they want to deploy me back to now) that I started in in 2006. In 2007 I moved to a different job in the same department but at new site at a higher grade. This contract doesn't make any reference to this. Does this effectively mean my current role is not covered by a contract or simply that, as I am already employed there, they have no need to issue a new contract? thanks.

Expert:  Ben Jones replied 3 years ago.
Legally the employer is not required to have a written contract in place although they must have a written statement of employment particulars:

https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars

This should be updated as needed but in the event that there is not one in place there would till be a contract in place, even if it is unwritten and that would be implied in place. Its terms would be subject to agreement but generally they would be whatever is shown to have been applied consistently over time, such as the duties you do, the pay you receive, the place you work in and so on.
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46773
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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