Disability employment advice

*zippy*

Hi appreciate some advice for my Daughter please

She has a after school/weekend job with a well known burger company, they took her on knowing she had tourettes and after umpteen interviews they were the only ones willing to offer her a job and were very good working around her tics. She passed her review and was given a permanent contract, but a week later her tics changed and she is now swearing.

They said they hadn't had this situation before so asked for her to put a month's sick note in, which is up next week so my Daughter needs to ring them today really, but she is worried they will say she has to leave. The situation is still the same, but her tics change all the time so ideally she would like to keep the job open a bit longer.

When my Daughter went for her sick note the Dr Said they can't say you can't go in because of your disability, but I'm not sure what section she could work on she as has motor tics which rule out cooking, other jobs are customer service.

So I'm wondering what rights she has and is another sick note just to give her more time the best option at the moment?

Many thanks x

Crazy_Jamie

This is a very difficult situation for all concerned. Your daughter has some level of protection in law due to her condition, and to that extent the doctor is correct that they cannot dismiss her simply because of that condition. However, that protection is not unconditional, and it is possible for a situation to arise where dismissal is legitimate on the basis of that condition. That situation would come about effectively where no reasonable adjustments can be made for your daughter to do the job, and that as a result of her condition she cannot effectively do the job and won't be able to going forwards.

However, there is a process that needs to be undertaken before the employer can be satisfied that dismissal is both appropriate and justified on the grounds of being unable to do the job due to your daughter's condition, and that process is based largely around gathering information as to the best way forwards, including obtaining medical opinion.

It is not in your daughter's interests to hide from this. It is the best thing all around for everyone to communicate properly. On the basis of what you have said the employer would be on very thin ice indeed if they simply dismissed your daughter at this stage; to my mind they probably need more information. As such it is unlikely that they will do that, but in any event your daughter doesn't gain anything from trying to avoid them. Call them up and agree a way forwards, which may entail her coming in and talking to them and/or a doctor communicating with them as to what they can expect from the condition going forwards. Either way it is a situation that needs to be dealt with, and the best way for that to happen is simply for your daughter to talk to her employer and work through things that way. Attempting to hide from it won't help anyone.

I can post further on this later on if you have any more questions. Obviously it's not an easy situation, so feel free to ask any questions that you do have.

Fire_Fox

Is she a member of a union? That would a wise thing to do. Is she too sick to work? If not I don't understand why she has been persuaded to get a doctor's note, absenteeism is never good on your employment record. Shouldn't they have redeployed or suspended on full pay if they felt she is unable to do the job?

Takeaway_Addict

Fire_Fox wrote: »

Is she a member of a union? That would a wise thing to do. Is she too sick to work? If not I don't understand why she has been persuaded to get a doctor's note, absenteeism is never good on your employment record. Shouldn't they have redeployed or suspended on full pay if they felt she is unable to do the job?

I think its mainly because the employer has no clue what to do (and tbh I wouldn't either but I would speak to a professional before doing anything)

Its a very difficult situation for both parties and I can understand an employer not wanting someone who is swearing uncontrollably (albeit with no maliciousness) in front of customers.

I would say though the employer probably should have suspended on full pay and gotten advice.

Crazy_Jamie

Fire_Fox wrote: »

Is she a member of a union? That would a wise thing to do. Is she too sick to work? If not I don't understand why she has been persuaded to get a doctor's note, absenteeism is never good on your employment record. Shouldn't they have redeployed or suspended on full pay if they felt she is unable to do the job?

The OP's daughter suffers from a disability. Currently that disability is preventing her from performing a vital aspect of her role, namely talking to customers without swearing (which, ultimately, is a vital part of the role whichever way we care to spin it). Whilst this is not sickness or physical incapability as we would generally see it, it is nevertheless an example of someone being physically unable to undertake a role due to a disability, and as such (to my mind at least) a doctor's note is the correct course of action. To suspend on full play would imply some sort of disciplinary issue, which of course is not the case here. That said, this is hardly a common situation, and opinions will differ on the correct course of action. On the face of it I would be hesitant to criticise the employer at this stage, though.

Redeployment is a relevant consideration, but given that this is 'a well known burger company' I expect all available roles are client facing in some way, which causes a problem. Ultimately at this stage the correct course of action is for both the employer and the OP's daughter to work through this and try to find a solution, bringing in relevant medical evidence as and when it is necessary. If there is a suitable alternative role, that should (and no doubt will) be offered, but on the face of it that may well not be the case.

zzzLazyDaisy

There is such a thing as 'medical suspension'. Basically, this is where the employee's GP says they are fit for work, but the employer is not satisfied that the employee is fit to do the type of work they are employed for. So the employer refuses to allow the employee to return to work and puts them on medical suspension, pending further investigations, which may include an OHA assessment, and/or obtaining a much more detailed report from the GP/consultant explaining the employee's role and seeking advice on when the current medical condition might be resolved and recommendations for adjustments that might enable the employee to do carry out their duties.

Medical suspension is not very well known and hardly ever used by employers (for obvious reasons, as they have to give full pay for no work, instead of encouraging the employee to go off sick and just pay SSP). However in this case it seems that the GP agrees that she is not currently fit, by reason of her disability, to do her job.

OP, I don't know what to suggest. I wonder if Tourettes Action can give you some advice? http://www.tourettes-action.org.uk/

From an employment law point of view, an employer cannot simply dismiss an employee because of their disability, but if they have done everything expected of them, including making reasonable adjustments to their working practices, then dismissal may become an option. It is reasonable for the employer to require customer facing staff to be polite and courteous, and swearing at the customers isn't going to meet those requirements. She may be better with a 'behind the scenes' role, such as warehouse work, or office work?