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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have obstructive sleep apnoea. i have been receiving

Resolved Question:

i have obstructive sleep apnoea. i have been receiving treatment for the last four months. from time to time i have brief lapses where i will doze off. the lapses only last a matter of a minute or so. i started a new job as a support worker and i made it known to my manager of my condition. the job involves sitting and observing the service user when he appears . the rest of time i just sitting on a chair doing nothing and during this period i have had lapses. my manager says that i am a liability and this cannot happen. as long as i am not sitting for long periods i am perfectly fine. in my other job the employer is perfectly fine with me and my condition, in fact my colleagues snap me out of it when i have lapses. am i being discriminated against by my new employer. what about diabetics who inject insulin , they tend to have hypos and can be unwell for an hour or so. are they a liability aswell. i am perfectly when i have snapped out of it
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello how long have you worked there for and is there anything the employer can do to assist you with your condition so that your job is not affected as much?

Expert:  Ben Jones replied 1 year ago.

Hello, not sure if you saw my initial query above - how long have you worked there for and is there anything the employer can do to assist you with your condition so that your job is not affected as much?

Customer: replied 1 year ago.
i have only just started. at moment i am shadowing. the job involves sitting and observing for long periods, a typical shift is 12 hours. in the other companies i work for i am on the go all the time and rarely get a chance to sit.as long as i don't sit i'm perfectly fine. the treatment was going perfectly fine until recently when lapses started occurring. whenever i sat down i would doze off for a brief moment and then snap back out of it.
the only thing the the new manager needs to do is be patient and work with me whilst treatment is going on but he doesn't understand the condition. in my main job my manager and colleagues are understanding and snap me out of it whenever they see it happening. i am due to see my consultant in a few days and will enquire as to why these lapses are occurring.
Expert:  Ben Jones replied 1 year ago.

Thank you. Your rights will be determined by whether you are classified as disabled. 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.

So if you are being treated detrimentally because of your condition your employer may indeed be guilty of discrimination. I this suggest you need to make it clear to them that they have strict legal duties to make reasonable adjustments and that they have to start thinking about how to implement them.

This is your basic legal position. I have more detailed advice for you in terms of examples of reasonable adjustments and how to take this further if no changes are made, 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, there is no extra cost and 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. 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;
  • 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.

This is what the employer should be looking at first and failure to even consider reasonable adjustments could amount to disability discrimination.