reasonable adjustment?

coin_operated_girl

Hi,

I did write a long, long post with lots of details in it but decided that the specifics are probably irrelevant and I would rather keep it vague to keep it anonymous as possible, so I hope there is enough detail in this post...

I work in a small care home. A colleague (who has been working with the company for over a year) was recently signed off work due to stress and anxiety (which ultimately has been caused by another colleague). He is back at work now, but the GP has advised that he does not work certain shifts for a while because they exasperate his stress and anxiety. There is nothing more stressful about these shifts than other shifts per se, but these certain shifts require us to sleep over at work, which I believe is the aspect that the colleague is currently unable to cope with as he is away from his family. Each employee is required to work these shifts once or twice a week, depending on the rota, and we absolutely must have someone working this shift everyday as it requires a long period of lone working and we cannot leave the home without any staff.

At the moment we have been able to muddle through with him not working these shifts as luckily someone else has always stepped in to do it. However, the colleague is worried about his job because he saw his GP again the other day and the GP advised again that he does not work these shifts until he feels ready. It is impossible to say how long it would take for him to feel ready- if I was to hazard a guess I would say 1-2 months, but that is just my gut reaction, so who knows.

Could he argue that it is a reasonable adjustment for the company to let him not do these shifts as this is a just a temporary measure (although I guess he cannot say with 100% certainty that it is just temporary)? If he was to be signed off work completely again, is there a certain amount of time that his job legally has to be kept open or is it (as I suspect) completely at the discretion of the company? Could he use his annual leave as a way of getting out of doing these shifts, or could management refuse on the grounds that it is not a reasonable request? Is there anything that I haven't thought of that he could try and use to protect his job for a little while? Does the fact that his stress and anxiety stem from the work place change anything?

He is a very good employee and I don't think management would want to let him go, but at the end of the day they need employees who they can depend on due to the nature of the work. Its not a case of us just being a bit short staffed which creates a bit of extra work, its a case of we 100% need a member of staff to work this shift otherwise the home would be unattended which is just simply not an option.

TIA

Edit: forgot to add; it is in our contract that we will be required to work these shifts.

getmore4less

He can get a fitnote with this restriction.

The employer needs to address the issues causing the stress, it is not just the sleep over shifts, getting the guy back to normal work paterns by supporting the situation it the best for every one.

Using holiday can just make this worse because they won't have the holiday left to take a holiday.

refusing the adjustment means he goes off sick so you have bigger problem.

if the problem in the workplace are not resolved what is to say it won't happen again with another employee

Sambucus_Nigra

If the stress and anxiety has been caused by another colleague - are the management addressing this? And if they did, would it mean he could do overnights again? Do they know that it's this other colleague that has caused the issue?

heretolearn_2

Gps remarks and recommendations on a fit note have no legal force at all and the company can ignore them/say they can't do it.

What is reasonable is not something it is possible to clearly define, it is very much situation by situation. It's not something the GP decides - the company decides. If they get that totally wrong, then the employee can take them to a tribunal.

You say it's a small care home. I would say this is quite a major factor in how 'reasonable' an adjustment this is, as it requires other staff to change their contracts and cover for him by working extra nights. With lots of staff, this load can be spread out and might be reasonable. In a small home, how many people are there to work these extra night shifts? How do they feel about it? How easy is it for the home to arrange this? What will happen if everyone says 'no', they won't do his shift on one specific night?

As you say, it's a requirement for the home to have someone there overnight - to the extent that the home will be closed down if it fails to do so...

If 3 people are having to cover these shifts instead of 4, then it means the business is having to do something quite difficult with a 25% reduction in the staffing required....

No one here can say what would happen if it went to a tribunal, but the home has so far been very fair, and there has to be a point when they say they cannot continue to offer this adjustment as they HAVE to be able to guarantee full staffing overnight. At that point they may decide to dismiss under competency grounds - he is no longer able to do his job.

In any case, it's all a bit irrelevant, as temporary problems are not covered by disability legislation, it has to be a permanent or long-term effect (usually expected to last 12 months or more).

Savvy_Sue

I'm just wondering if he's in a union, because if he is then they would be best placed to advise him. And if you're not in one, I'd strongly recommend joining one: you never know when something like this will crop up, and you need to have been in for a few months before they'll support you.

TBH, in the employer's position I'd see this as not a reasonable adjustment, except in the short term, because of the knock-on effect on everyone else. Your colleague gets taken off nights; someone else gets signed off with stress as a result of doing extra nights, and the position becomes untenable. It can also lead to resentment among others, even if you're a big happy family atm. And we're coming up to winter when people start going down with colds and flu as well.

However, given that it takes time and costs money to recruit, induct and train staff, it's possible that the employer will agree to this for a longer period, closely monitored. It might be worth their while to consult an Occupational Health service, which can give specific advice on the work situation - the GP can only see the presenting problem, if that makes sense, whereas OH have expertise in how the presenting problem can be managed at work, if that makes sense.

And another possibility is to identify casual / bank staff who could be called in to work 'as and when', perhaps specifically for nights. And there are agencies who can provide such staff, again identifying these and haggling over costs is worth doing in advance rather than when the crisis presents.

But all this is speculation, and since you don't know what the employer is doing about the cause of the problem, nor how soon your colleague might be fit to return to nights, it can't really be any more than that ...

coin_operated_girl

Thanks very much for the replies everyone. They have been very helpful in showing me that this is not a straight forward situation with an easy answer. I must admit that I'm very naive to this kind of thing because I'm very much a "keep your head down and get on with it" kind of person. However, I seem to have got caught up in this a bit when I really didn't want to due to lending an ear to my colleague.

Anyway, I did reply to each post individually, but deleted them in a bit of a panic as I keep reading on the boards about people being identified on here by other people they know, so I'll be a bit more vague...

He agrees (and so do I) that the company have been more than fair. I'm very sure he wouldn't go down the route of taking them to a tribunal or anything like that.

It is a very small care home, with a small number of staff so when someone is off for whatever reason, it is felt, but we manage (the clients are fairly independent and there is only a very small amount of personal care involved in this job, so if we are a man down then usually its OK). We have a number of agency workers who we can call upon to work the day shifts if we have to when there are regular members of staff around, but we do not use them for the sleep over shifts as this requires a long period of lone working and administering meds so management will not use agency staff for this shift as they do not work in the home regularly enough to be given this responsibility.

Absolute worse case, if someone suddenly cannot do the sleep over shift another member of staff will step in- even if it means they are at work for 2 days straight (which has very occasionally happened- we have a staff bedroom, so we would be allowed to have a long break/sleep in this case and it is completely of the member of staffs own free will, theres no pressure from management to do this). We care about the clients too much to just stick to our contracted hours in times of emergency. However, this obviously isn't a viable option in the long run.

I'm pretty sure he isn't in a union...it's a good idea about joining one. Its something I've never really thought about before.

I think I agree it's not really a reasonable adjustment. The managers are quite good and do look after us, so they wouldn't just get rid of him without a fair adjustment period but I think they are starting to look at replacing him because obviously it is not fair on the rest of the staff. I guess something has to give soon; either he works his normal hours or they replace him.

But, as correctly stated, this is all just speculation as I don't know when or how this issue will be resolved. I guess I was just looking for a way for him to bide his time a bit whilst he gets over his anxiety issues (they have gotten quite bad and he has panic attacks even when he is not at work) and to try and determine where he stands in all of this in terms of his rights. It seems like it all boils down to how long the employer is prepared to keep covering his shifts, which is fair enough.

getmore4less

Are you staffed to the correct level to cover the full time equivilent taking into account holidays and some sick?

To provide 1 person full time 24/7 is 8736 hours.

40hours per person with minimum statutory holiday 5.6 weeks 1 person does 1856

Thats a minimum of 4.7 people just to cover holidays

Any overlap of shift or double cover time requires more people.