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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49780
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have a member of staff who is regularly off sick. Last year

Customer Question

I have a member of staff who is regularly off sick. Last year she had 172 hours off (her normal working week is 33.5 hours) She has an on going illness and we cant see an end to this problem, which is general tiredness and a bad tummy. After speaking to her on Wednesday last week it was decided that it would be better if she reduced her hours by dropping a day so she can manage her illness better. However she has now changed her mind. Can we enforce this as it would be better all round. We are currently getting staff to work extra to cover her in case she is off which is costing the company money.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones :

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

JACUSTOMER-m5jnciap- :

she started summer 2013

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

You cannot force her to reduce her working hours because that would amount to a change to her contract and you would require her consent . Also depending on the nature and seriousness of the illness you may have further obligations under disability discrimination laws, which would require you to assist the employee and make reasonable adjustments if their condition affects their ability to perform their job.

First of all you should try and establish if she is 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 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 , assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.

So it is best to approach this from the disability discrimination angle and advise the employee that you have a duty to make reasonable adjustments and that reducing her hours as initially agreed is the best option in the circumstances. If she refuses and her absences continue and it is likely that they would have been managed better or avoided by this change you could advise her that eventually you will have to commence a capability procedure where you will have to take formal action on this, which eventually could result in dismissal if she is no longer capable of performing her job. Whilst that option is some way away you could make it clear that you require her cooperation in this because refusal to accept what are considered reasonable adjustments could backfire and leave her exposed to being placed under a capability procedure.

Finally, you may wish to try and get her to an occupational health specialist so they can give a professional opinion on what adjustment are likely to work best in this situation and use their opinion in any subsequent negotiations with the employee about the proposed changes.

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

, 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 in relation to this? I just need to know whether to close the question or not? Thanks