Employers Refusal to Make Adjustments

Hello Everyone,

After insisting I see the OHS "because they want to be supportive," my employers are now suggesting that it may be unlikely they will be able to make the adjustments on my return to work, as recommended. I will need to see the OHS doctor when I return to work, but in the meantime can they refuse to make reasonable adjustment under the DDA? Under the DDA extra sickness absence should be considered, but it was even suggested that this was senior management's decision and was discretionary. It appears to me that they are trying to use the recommendations as a way to prolong my return so they can dismiss me on ground of in capability. Can anyone shed any light?

Thanks

7 Replies

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  • Hi Jazi, I used to work in occupational health and an employer has to consider all recommendations made by OHS in line with the DDA - if they decide that they are unable to make the adjustments that have been recommended then they need to formally write to you to explain the reasons why. As you mention extra sickness absence may be indicated if they need to make the adjustments before you return to the workplace, and in theory this shouldn't be an issue! If you have been absent for some time then OHS would usually request a phased return to the workplace. I hope this has helped a bit, and I hope that you are able to return to work ok. Take care and best wishes xx

  • Hi, I had a prolonged 3 month absence from work and had a phased return over a two week period. They had to make some changes to equipment that was just for my use. I was also not alloud to climb stairs so that part of my job was affected.

    I have since after being ill after c-section which kicked my Lupus into overdrive after not having it before I was unable to return to work due to the multiple problems with my body etc through Lupus and Fibromyalgia. It took 2 years of OH appointments and meetings with my boss and HR for the final desision to be made and I was made redundant through ill health with a payoff as per my employment contract.

    I would suggest that you can get help from your workplace union if you have one or a visit to the Citizens Advice hitch is free or maybe a solicitor that specialises in Emplioyment Law. You would normally get a half hour or hour long appointment free before they charge. You might be entitled to help with your fees.

  • Hi,

    It depends on what the recommendations from OH are and what is considered reasonable in law. There is nothing that is "at the discretion of management" in the DDA!

    See extracts from the DDA 1995 which apply below:-

    ":-3)The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1)—

    (a)making adjustments to premises;

    (b)allocating some of the disabled person’s duties to another person;

    (c)transferring him to fill an existing vacancy;

    (d)altering his working hours;

    (e)assigning him to a different place of work;

    (f)allowing him to be absent during working hours for rehabilitation, assessment or treatment;

    (g)giving him, or arranging for him to be given, training;

    (h)acquiring or modifying equipment;

    (i)modifying instructions or reference manuals;

    (j)modifying procedures for testing or assessment;

    (k)providing a reader or interpreter;

    (l)providing supervision.

    In addition please see the following:-

    In determining whether it is reasonable for an employer to have to take a particular step in order to comply, regard shall be had, in particular, to—

    (a)the extent to which taking the step would prevent the effect in question;

    (b)the extent to which it is practicable for the employer to take the step;

    (c)the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

    (d)the extent of the employer’s financial and other resources;

    (e)the availability to the employer of financial or other assistance with respect to taking the step.

    The point is that if the adjustment you require is considered reasonable in terms of the DD Act as above (and surprisingly many things often are unless the company is really in financial difficulty)

    and if your employer cannot actually PROVE to the courts why they cannot do it (the onus is on them to do so) then they will fall foul of the DDA, for which as you know there are heavy penalties, plus compensation for yourself via the courts if they have dismissed you. Just for example, if your employer says the job cannot be undertaken without you being actually on the premises, THEY have to prove your work cannot be done from home whilst you may argue that it can. (if that is the case). Similarly if they are of good financial standing but say they cannot afford to make adjustments, the court will take a dim view and can then require them to. (Several of the disability charities have special funds available to help employers make such adjustments if they do say it is a question of money anyway.)

    This is all very dependent on how far you are willing to go. If it means they dismiss you because they say they cannot adjust, and you will then be without a job, plus in addition you will have difficulty finding another, the DDA gives you the opportunity to challenge it through the courts.You will really need some proper legal advice if you do think that the necessary changes are quite reasonable and they are suggesting otherwise. Lots of useful info. can be found on the website:-www.yourworkhealth.com and click on the "employee advice" link, which specifically mentions the DDA and where to go for help for persons with fluctuating illnesses. Hope this helps and best of luck with it all.

  • Hi Riverbird,

    Thanks for the exerpt. You sound experienced..? I consider the proposed adjustments to be reasonable - amend duties and workplace adjustment (work nearer home - local offices and limit UK wide travel). They are already alleging underperformance as a leverage to prevent the adjustments, citing I need to be in the central office so I can be supported and wondered it they could do that. It is a massive organisation so the above listed adjustments apply.

  • Hi please keep all notes of meeting that you are having with your work place along with any from OH. Make sure that you read up on your rights under the DDA, Do your home work so when you are speaking with them they know that you know what you are talking about, and if what you are asking for is reasonable push for it. Best of luck.

  • Hi Guys, you've all been so helpful. Thanks for the information and tips. I will certainly keep records, research and homework. Hope I can remember when the time comes.

  • Hi Jazi,

    If the central office involves a more tiring journey which would be detrimental to your health, and it is actually possible for you to work more locally, then they are on a sticky wicket, especially if they are a large company (expected to have more resources).It might well be deemed that it would be reasonable to move the "support" nearer to you (dependent on what they say that "support" is).

    However, you will also need to be careful of whether under these adjustments, you would be considered fit to undertake the range of duties in your job description. But that is the whole point of DDA, and what would be deemed reasonable adjustments to enable you to do this.

    Good luck and don't forget as already mentioned that CAB are very good at advice.

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