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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48795
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My wife works at the moment and has done years

Customer Question

My wife works at the moment for asda and has done for 20 years she has been asked to change her contracted hours currently 0600 -1200
Thurs Fri and sat to include a later shift Thurs 1600 to 2100
Three years ago she reduced her hours from a 1400 finish to a 1200 finish as she has ostioarthritas and takes regular pain killers by 1400 work was becoming very difficult this was accepted and the adjustment made
After being sent to an occupational therapist there opinion was that if a stronger pain killer was prescribed she would be able to do the later shift
The gp was given sight of this and disagreed saying her condition was progressive and they would be needed in the future he also provided a fit not recommending the hours 0600 1200
She has been told the if she doesn't accept the new contract she will be terminated on march 10
Would she have a case for unfair dismissal and or disability discrimination
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
What does her contract say about this ?
Customer: replied 1 year ago.
She been told take it the new hours or she will have her contact terminated
Customer: replied 1 year ago.
She has been told the change is because of needs of the businesses but it is my understanding that indervidual circumstances should be taken into account
Expert:  Ben Jones replied 1 year ago.
Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query. You are correct that a person’s individual circumstances should be taken into consideration, especially if they are suffering from a disability. If that is the case, the employer would have a strict duty under law to make reasonable adjustments and these could include for example things like reduced hours or lighter duties. If the increase in hours is going to affect her health as a result of her disability then the employer would need a very clear and strong argument as to why they cannot accommodate her current hours and they must change her current working arrangements. Simply forcing through the changes could amount to discrimination and in the event of a dismissal for refusal to accept the changes, it could indeed amount to an unfair dismissal. Before she considers these she should be satisfied that she is in fact disabled for employment law purposes. Also she needs to challenge the employer on the reasons for the proposed changes and why they cannot make reasonable adjustments to accommodate her current requirements and keep her current hours. As mentioned it would take a very serious requirement for them to try and argue that they cannot do this and often the employee would come out on top in such circumstances. This is your basic legal position. I have more detailed advice for you in terms of the law on disability and how to determine whether she is disabled together with her options on taking this further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Thank you. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’. The Equality Act 2010 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;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 could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.) If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably 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: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 unfavourably 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 (the time limit for claiming is only 3 months from the date of the alleged discriminatory act taking place).
Customer: replied 1 year ago.
Thank you for your advice it has been very helpful
I think this employer is at a disadvantage as they have already made adjustment to hours ie reduction and feel that this shows an acceptance of disability which gets worse as the day progresses a take it or leave it attitude is not consideration
Expert:  Ben Jones replied 1 year ago.
Yes I agree and considering they are such a big company, any excuses will be wearing rather thin and there would be greater expectations on them as it should not be THAT difficult to accommodate her
Customer: replied 1 year ago.
Thanks again for your help
I'll let you know the outcome
Expert:  Ben Jones replied 1 year ago.
You are welcome, all the best for now