Occy health and (un?)reasonable adjustments?

elsien

A team member has been off sick for 6 months and is now ready to return on a phased return. Normally a 26 hour contract, with shifts over 7 days usually varying in length from 6 to 8 hours. So the person never works a 5 day week unless they pick up overtime, it just doesn't work for our shift pattern.

Occupational health has failed to notice we are not an office environment and has recommended 4 hours shifts to start with, over five days. Increasing the odd hour here and there till back to normal. However as a lot of the team are fitting round childcare/other jobs, the chances of me being able to get someone to stay on for or come in for the missing 2 or 3 hours are fairly minimal, especially if it's for 5 days a week. Leaving the hours uncovered is not an option.

Now clearly I'm not going to put the person straight back in on long shifts. But is having to fit in hours that really don't work for the setting a reasonable adjustment and do I have grounds to argue that the suggested return is way too restrictive.
The illness is covered by the equality act.
(I do think it's occupational health not understanding what the job entails rather than the person being difficult, btw)

So just wondered where the unbiased observer thinks I stand before I do the return to work interview. HR are currently not returning my calls. Or acknowledging my emails.

Acc72

A doctor can make recommendations, but this does not mean that the employee needs to comply with them (there is no legal requirement to do as they recommend) - not sure if it is any different when this comes from Occupational Health though ?

Either way, what does your manager say ?

You need to keep him/her fully in the loop and get them to tell you what they want you to do (that is what they are paid for).

If you do it yourself and get it wrong your manager will want to know why.

Thomas_Hardy

I would agree with your interpretation Elsien, OH do not seem to understand what the worker's role is and so the adjustment does not seem reasonable. However, I would ask who is doing their work at the moment, and is it a role that can only be done over a whole shift? For instance, if others work 8am - 4pm, would it not be possible for the worker to do 10am - 2pm?

elsien

Residential care, so cover needed for the whole shift - legal requirement for minimum staffing levels. And needed for personal care etc at each end of the day.
At the moment I'm getting relief and agency in to cover the whole shift, but they're not going to be wanting to come in for just a couple of hours as it's not worth their while, especially if it's at silly times. If my person comes in 8/12, agency won't accept the 12/4, they say it's not long enough. And it means that the people in the home don't get proper support as they would have to wait in for the handover instead of getting out and about to community activities.

For example if I give my phased return person a 4/10 shift I either have to either cover the 4/6 (which tends to clash with childcare arrangements) or the 8/10. No-one is going to come in for 2 hours 8/10pm on a regular basis, although if I grovel I might get the odd bit covered.
At 10 most staff go home and 1 stays on, so I can't even ask someone to come in early.
They really haven't thought it through. My company tends to go overboard on the side of avoiding being sued though, which is why I was looking for advice before getting into the argument.

Thomas_Hardy

It sounds like you have thought it through thoroughly (that's a mouthful!), and your reasoning is sound. Are there are any other duties she could do - is any help needed in the kitchen, or is a cleaner needed?

elsien

No, we just have support staff, so helping people to cook and clean is part of the normal every day work that we do. Just one job role and that's it.
Thanks for the help - it's at least made me clarify what the issues are before I gird my loins to do battle!

Funky_Bold_Ribena

Personally, I'd not do battle yet - until you have spoken to HR. And if they aren't returning your calls then you need to delay the return to work interview until you have spoken to them and got their support on your plans.

zzzLazyDaisy

No-one on here can help you with this problem. You have got to speak to HR, and HR will need to liaise with Occupational Health.

Your problem is that it is (presumably) the employer that has instructed OHA, so it was/is up to the employer to explain what the work is, and if OHA's recommendations are not practical, then the employer must deal with that (probably via HR).

What you should not do is simply to say that OHA's recommendations are not workable, so you are going to ignore them/do something different.

Why? Because the Equality Act provides that the employer must make reasonable adjustments in order to assist the disabled employee to remain in employment. What is 'reasonable' depends on the employer's finances and resources. The OHA is obviously of the view that the recommendations amount to reasonable adjustments. This may mean the employer paying for temporary cover until the employee is able to work longer hours (maybe agency staff) if cover cannot be provided by the existing staff. But the 'reasonableness' is not a duty placed on the other staff, or on the disabled employee who is returning to work, it is a duty placed on the employer, and if the employer fails in its legal obligations towards the disabled employee the financial penalties can be high.

So my suggestion is that you refer the report to HR explain your difficulty and ask how HR proposes to resolve this. If HR cannot come up with any workable solution, then the employer must speak to the OHA and explain the situation, and see what can be done.

Bennifred

It sounds to me as though you would have to use the returnee as an extra pair of hands (so still employing the temporary cover) during the phased return, in order to ensure full cover for the hours you need. Would that be possible?

Takeaway_Addict

Bennifred wrote: »

It sounds to me as though you would have to use the returnee as an extra pair of hands (so still employing the temporary cover) during the phased return, in order to ensure full cover for the hours you need. Would that be possible?

It could be argued though depending on the size of the business etc that the extra cost doing this is not reasonable to the employer

elsien

Another equality act question for you - not related to the situation I've asked about above, but it cropped up in conversation and I'm just curious.

If someone has had cancer, this comes under the equality act from the moment of diagnosis. If the cancer is then cured (ie the cancerous bits removed and several years later lymph nodes etc are clear, check ups no longer needed etc) but there are ongoing health issues triggered by the initial cancer and its treatment, would this still be covered by the equality act due to the original diagnosis?