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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I am currently employed part-time in a Nursery, and have always

Customer Question

I am currently employed part-time in a Nursery, and have always worked with the older group of children aged 4 to 5 years old. 18 months ago I underwent spinal surgery which has left me with chronic pain, taking pain-killers just to cope with my 5 hour shift. My manager has recently advised me that she intends to move me to work with a younger group of children, about 2-and-a-half-years old. I know from the short times I have had to work with this age group previously that it entails much more bending, lifting and working at floor level. These movements lead to more pain and an increase in the amount of painkillers I will require to take - ultimately this could lead to me taking more time off work and losing money as I do not get paid for taking time off. Do I have any right to ask my employer to keep me in the position I am currently in, or can she ask me to undertake more strenuous work knowing that I have physical limitations?
Submitted: 5 years ago.
Category: Law
Expert:  Ben Jones replied 5 years ago.
Hello, my name is Ben and it is my pleasure to be able to assist with your question today. Please let me know if your contract says you can be moved to different groups?
Customer: replied 5 years ago.

Ben, most of my current employment terms are verbal. Initially when I began working for the Nursery in 2008, it was funded partly by Local Authority and partly by nursery as support for a child with additional support needs. Once that child left the nursery, the owner requested that I stay on, solely employed by her and we discussed rates of pay etc but I do not seem to have this in writing. My terms were 4 days per week ( 8 hours ) at £7.00 per hour.

Following surgery, I have been unable to return to work for full days and it was verbally agreed that I would return on half shifts - 5 hours per day. I was never given a new written contract however on my "phased return to work" forms completed by my employer, it has been noted that I have physical limitations i.e. lifting, bending.

My employer is also aware that I am currently taking prescription pain relief for this condition and has facilitated a half-hour break during the day to allow me to take pain medication with a meal as instructed by my doctor.

During my time with this employer, I have always worked with the older children and feel that my employer is trying to place me in a new position which is physically more demanding than I will be unable to carry out.

Expert:  Ben Jones replied 5 years ago.
If you have always worked with the older children then you may certainly try and claim that this has become an implied contractual term through custom and practice. That then means that any attempts to amend these terms would potentially amount to breach of contract by the employer. You can challenge this in a number of ways:

1. Start working on the new terms but making it clear in writing that they are working ‘under protest’. This means that the employee does not agree with the changes but is only working them because they feel they are forced to. In the meantime they should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes are serious enough (e.g. a change to pay, duties, place of work, etc.) the employee may wish to consider resigning and claiming constructive dismissal. The resignation must be done without undue delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to the employee having at least 1 year’s continuous service.

3. Finally, if the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can justify the dismissal and the changes if they had a sound business reason for dismissing an employee who refuses to accept the variation in terms. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, the employee can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 1 year’s continuous would apply.

In addition, the employer will have a duty to make reasonable adjustments because your condition is likely to amount to a disability in law. 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.

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