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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 73922
Experience:  Qualified Solicitor
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I'm looking for advice from an employment lawyer. I've been

Customer Question

I'm looking for advice from an employment lawyer. I've been off sick and I believe the manager is going to put me on night shift, which i what made me ill in the first place.
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: no
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I'm a full time employee, who's been in full time employment with the company for 6 years.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: To other full time employees didn't have to do night shift and they are on the same contract as me.
Submitted: 20 days ago.
Category: Law
Expert:  Ben Jones replied 20 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Customer: replied 20 days ago.
ok
Expert:  Ben Jones replied 20 days ago.

Is your shift pattern set out within your contract? and what reason do you have to believe your manager intends to give you night shifts?

Customer: replied 20 days ago.
There is a 3 shift pattern. 6am-2pm, 2pm-10pm and 10pm-6am. Two employees who do the same job as me, don't have to do night shift. One I know for a fact has an identical contract as me, and he doesn't do night shift as he has to look after his father who's very ill. The other employee doesn't do night shift for medical reasons. I had a car crash three weeks ago because I fell asleep at the wheel due to lack of sleep brought on by anxiety. I'm off with depression, I said i might be able to come back next week. I believe the manager will bully me to go back on night shift because they are short staffed. This is a rumour, but I've heard from a good source.
Customer: replied 20 days ago.
I can't afford to phone you.
Expert:  Ben Jones replied 20 days ago.

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Expert:  Ben Jones replied 20 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. If your contract allows it, the employer can ask you to work the night shifts if necessary. I appreciate that others have the exact same contract as you but that does not mean that you should all be given night shifts – it means they can be asked to do so by the employer if needed, but that is up to them.

Your main challenge to being asked to do them would be if you can shoe the employer that you have a disability and that it affects you doing the night shift.

The legal definition of a ‘disability’ can have a broad meaning and there is no single list of medical conditions that can qualify. Potentially, any condition or ailment can amount to a disability if it meets the required criteria.

That criteria are contained in The Equality Act 2010, which 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 and examine it in more detail below:

- Physical or mental impairment – this can include practically any medical condition, be it a physical or mental impairment

- Substantial effect – the effect must be more than minor or trivial

- Long-term - 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. shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities)

Please also take a look at this detailed guide on determining if you are disabled:

https://www.citizensadvice.org.uk/work/discrimination-at-work/checking-if-its-discrimination/check-if-youre-disabled-under-the-equality-act/

If a person satisfies the necessary criteria, they will be classified as being disabled in a legal sense and will have automatic protection against discrimination. This 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. The most obvious one here would be not asking you to do night shifts if they affect your condition.

If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments, that would potentially amount to disability discrimination, which is unlawful. The first step to try and deal with this would be to raise a formal grievance.

If the grievance does not have the desired effect and the discrimination continues, a claim may have to be made for disability discrimination in the Employment Tribunal. The most important requirement with that is it must be submitted within 3 months of the alleged discriminatory act taking place. The next steps to start the process would be to initiate what is known as an ‘early conciliation’ procedure through ACAS, either online by filling in the following form (https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute), or by phone on 0300(###) ###-####

Expert:  Ben Jones replied 20 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.