Does my employer have a duty of care?

frogga

Hello All,
I'm writing on behalf of my husband Mr Frog.  He is a HGV driver.  He has worked for his employer for 13 years.  They are a small family run firm.
He was diagnosed with Rheumatoid Arthritis 10 years ago and now has subsequent diagnosis of Emphysema and Pulmonary Fibrosis.  HE WANTS TO WORK.  He has had VERY LITTLE time off due to these illnesses.  I would say in the 13 years of working for them he has had a two day period of time off just recently, but before that I cannot remember a time when he did not go into work despite sometimes being in serious pain.  As an aside he also went into work the day following the deaths of both parents the previous nights. He is a hardworking loyal employee.
Our issue is they do not seem to take any mind of his disability and illnesses. They make the 'right noises' when I have tried to intervene on Mr Frog's behalf, but their attitude is really that they do all they can and he should consider whether he really should still be working.  Obviously he wants to work, and needs to work.  I want to know how much they SHOULD be doing to help him manage his conditions, or whether it really isn't their problem, and we just have to put up with it or leave?
An example of Mr Frog's problems ~
He does different deliveries every day.  Not often the same job twice.  Jobs could be starting as early as 1am or as late as 10am.  Could be finishing as early as lunchtime (after a 1am start) or as late as 10pm (if it is a long way away and the unloading takes several hours).  This is not conducive to taking medication at the same time each day, or trying to develop a reasonable sleep pattern.  There are jobs available that would mean he would always do early starts for example, but they often chose to give these jobs to agency drivers if it makes more sense for them financially. Also they will use Mr Frogs lorry overnight with an agency driver, but this again often makes his start delayed, all for the sake of a small financial gain (possibly as small as £20 in some cases.) When they have people using his lorry when he is not in it it means they move the position of his seat, which is extremely important for his RA, and some of the drivers lack in hygiene which is very dangerous given the drugs he is on. He must avoid infections as this could be very serious.
I have had conversations with the wife of the family, explaining the illnesses, and the advice form the hospital.  She listens at the time, but then still expects Mr Frog to do things that we agreed they wouldn't.
Do we have a leg to stand on?  I know for a fact that my employer shows a great duty of care to my colleagues.  Some people have special desks that no one else is allowed to use, some people don't work Fridays as they take certain medication, some people are allowed to avoid situations that will aggravate their conditions.  As a small family firm, Mr Frogs employer says they can't accommodate his needs? He has requested that others do not use his lorry due to changing the position of the seat and steering wheel.  They will not agree to this. He has asked that he had more than just a 9 hour break but they frequently ask him to start at 1am following a 4pm finish. He has spoken to them, I have spoken to them, and we have put the request in writing.  
To get to my point ~ does a small family run firm have a duty of care over Mr Frog? He developed the conditions AFTER he had been working for them.  I feel his requests are reasonable.  They would be costing the firm money it is true, but a VERY small amount. Does he not have a right to be looked after?  Can we ask for an OH person to help? Where do I start with this?  I just wish we could afford for him to leave. If it is not their problem, and it is ours, and you are someone that knows the facts, please just put me straight.
Many thanks for reading, and possibly offering advice.

Frogga x 

[Deleted User]

 They only need to make adjustments that they can. If he's not fit to do his job they could try and get him a desk job. But as a small company that probably isn't available. Which means losing his job. 

KatrinaWaves

if it is their van, and they are a small company with I assume no other access to vehicles, then you cannot insist that only he drives that van. He just needs to go earlier to make sure he is in a comfortable driving position, something I assume he can manage to sort himself in the vehicle. How exactly are the hygiene issues affecting your husband? BO? potential dirty wheel/handles? Take some anti bac wipes to wipe down if those are concerns.

I dont know the difference in costings between having agency drivers on certain shifts and employees on certain shifts but if it is proportionally very expensive to have someone else working that shift then they can refuse.

I appreciate he wants to work, but is HGV driving really the best for him with his conditions and needs?

Undervalued

frogga said:

Hello All,
I'm writing on behalf of my husband Mr Frog.  He is a HGV driver.  He has worked for his employer for 13 years.  They are a small family run firm.
He was diagnosed with Rheumatoid Arthritis 10 years ago and now has subsequent diagnosis of Emphysema and Pulmonary Fibrosis.  HE WANTS TO WORK.  He has had VERY LITTLE time off due to these illnesses.  I would say in the 13 years of working for them he has had a two day period of time off just recently, but before that I cannot remember a time when he did not go into work despite sometimes being in serious pain.  As an aside he also went into work the day following the deaths of both parents the previous nights. He is a hardworking loyal employee.
Our issue is they do not seem to take any mind of his disability and illnesses. They make the 'right noises' when I have tried to intervene on Mr Frog's behalf, but their attitude is really that they do all they can and he should consider whether he really should still be working.  Obviously he wants to work, and needs to work.  I want to know how much they SHOULD be doing to help him manage his conditions, or whether it really isn't their problem, and we just have to put up with it or leave?
An example of Mr Frog's problems ~
He does different deliveries every day.  Not often the same job twice.  Jobs could be starting as early as 1am or as late as 10am.  Could be finishing as early as lunchtime (after a 1am start) or as late as 10pm (if it is a long way away and the unloading takes several hours).  This is not conducive to taking medication at the same time each day, or trying to develop a reasonable sleep pattern.  There are jobs available that would mean he would always do early starts for example, but they often chose to give these jobs to agency drivers if it makes more sense for them financially. Also they will use Mr Frogs lorry overnight with an agency driver, but this again often makes his start delayed, all for the sake of a small financial gain (possibly as small as £20 in some cases.) When they have people using his lorry when he is not in it it means they move the position of his seat, which is extremely important for his RA, and some of the drivers lack in hygiene which is very dangerous given the drugs he is on. He must avoid infections as this could be very serious.
I have had conversations with the wife of the family, explaining the illnesses, and the advice form the hospital.  She listens at the time, but then still expects Mr Frog to do things that we agreed they wouldn't.
Do we have a leg to stand on?  I know for a fact that my employer shows a great duty of care to my colleagues.  Some people have special desks that no one else is allowed to use, some people don't work Fridays as they take certain medication, some people are allowed to avoid situations that will aggravate their conditions.  As a small family firm, Mr Frogs employer says they can't accommodate his needs? He has requested that others do not use his lorry due to changing the position of the seat and steering wheel.  They will not agree to this. He has asked that he had more than just a 9 hour break but they frequently ask him to start at 1am following a 4pm finish. He has spoken to them, I have spoken to them, and we have put the request in writing.  
To get to my point ~ does a small family run firm have a duty of care over Mr Frog? He developed the conditions AFTER he had been working for them.  I feel his requests are reasonable.  They would be costing the firm money it is true, but a VERY small amount. Does he not have a right to be looked after?  Can we ask for an OH person to help? Where do I start with this?  I just wish we could afford for him to leave. If it is not their problem, and it is ours, and you are someone that knows the facts, please just put me straight.
Many thanks for reading, and possibly offering advice.

Frogga x 

Legally if his illness constitutes a disability (for employment law purposes) then, and only then, are they obliged to make reasonable adjustments to help him continue in his work. Debating what is reasonable of course keep lawyers in fees! Generally more would be expected of a large organisation than a small family business but it all depends on the circumstances. The legal minimum "reasonable adjustments" are nothing like as extensive as many people fondly imagine.

Many / most employers actually do far more than the minimum the law requires and it sounds as if your own employer is in that category. Sadly that doesn't mean his has to be too.

However if he is "only ill" (sorry - ghastly phrase!) and not disabled for this purpose, then they are not obliged to do anything. They would be entitled to say "do your full job or go home sick". If he is off sick long term they could take steps towards dismissing him.

Finally, they are not obliged to engage with you in any way, strictly speaking any discussions should be between your husband and his employer.

frogga

OK thank you all three for your comments. I will try to answer.
This is a sticky point about 'making adjustments that they can' as MR Frog says they can, they say they can't. They do have office jobs but they are filled already and he would have no experience of this so they wouldn't want him to do that.
It's not a van, its an HGV.  They have about 10 I think.  There are OFTEN others that are not used overnight, it does not have to be his one that is used. They just do it without thinking/caring if it's an inconvenience to him.
No you are right, HGV is not exactly great for his conditions, but he is not qualified to do anything else.  He also felt, probably wrongly, that he had some security with the firm he is with as he has been there so long. He also says he doesn't want to be 'pushed out'. As for the hygiene issues, he is on medication which suppresses his immune system.  He is in danger of getting infections therefore and yes, coughing, sneezing, being unclean when going to the toilet and then sleeping on the cab bed, on Mr Frogs sleeping bag, using the steering wheel etc is surely a risk of infection? Someone once left a bottle of wee in the cab.  Maybe the thought of it is worse than the actual risk?
I'm not sure if his RA constitutes illness or disability? But it sounds like it wouldn't make a difference as it's a difficult task to ascertain what is considered reasonable.  And like you said some do more than is required.
Ho hum, food for thought.  Thanks for the replies. It's often hard to reply without sounding rude or ungrateful but I am grateful for your comments.

KatrinaWaves

Can does not mean 'physically can' of course they COULD physically prevent someone else getting into his van. It doesn't mean they have to. Of course they COULD give him his preferred shifts, but if it means they have to pay an agency worker 2x the price to do the other shift, they don't have to.

Reasonable adjustments doesnt mean something thats possible vs impossible.

I think hygiene wise its definitely the thought of it that is worse. Why doesn't he remove his sleeping bag when hes not in the wagon? Steering wheels can be wiped down. I think you are overstating the risk of infection, if his risk is that severe then I cant see how driving for long periods, unloading in random environments could be any worse.

I'm not an expert on HGV's but maybe there is good reason your 'husbands preferred' wagon is used rather than the others. Even if they are all identical I honestly don't see 'someone might not wash their hands after the loo so I dont want them using it' as a reasonable request. You could say that about the handles into the office, the stuff he is unloading form the wagon, the hand he shakes of the guy he meets at the other end. Basically there's sh*t everywhere, not just 'his' wagon.

Undervalued

Well first you need to establish if his conditions do amount to a disability. Certain medical conditions are automatically disabilities for this purpose, regardless of how severe the symptoms may or may not be at the moment. Otherwise it is a judgement call depending on how much it affects his day to day activities and whether it is likely to continue long term.

Assuming it is a disability then he needs some legal advice as to whether the adjustments he wants / needs are likely to be considered reasonable by an employment tribunal. Ultimately if the employer refuses that is where it would have to end up for a judge to decide. As I said earlier, it has to be only a reasonable burden  (particularly on a small firm) and not something that is completely uneconomic.

A common example is the fictional "widget maker". If he develops long term problems with his hands but a few hundred pounds worth of special tools allow him to work effectively then that would certainly be reasonable. If however, despite the special tools, the widgets he makes are of poor quality or it takes him twice as long as the other widget makers that probably wouldn't be reasonable.

If the WM worked for a large company, who employed hundreds of widget makers, then it might be reasonable for him to supervise or train other WMs rather than do it hands on himself. However in a small company that clearly wouldn't be viable.

KatrinaWaves

Undervalued said:

Well first you need to establish if his conditions do amount to a disability. Certain medical conditions are automatically disabilities for this purpose, regardless of how severe the symptoms may or may not be at the moment. Otherwise it is a judgement call depending on how much it affects his day to day activities and whether it is likely to continue long term.

Cannot get out of this quote box! Anyway as I am sure you are aware the 'automatic' disabilities are cancer, MS, and HIV (CAB also makes references to sight impairments and 'long term disfigurement' which was new to me! Anyway nothing I can see the OP's partner qualifying for as currently set out.

Undervalued

KatrinaWaves said:

Cannot get out of this quote box! Anyway as I am sure you are aware the 'automatic' disabilities are cancer, MS, and HIV (CAB also makes references to sight impairments and 'long term disfigurement' which was new to me! Anyway nothing I can see the OP's partner qualifying for as currently set out.

Indeed.
He may well still have a disability though, depending on the severity and prognosis. He needs to get expert advice on that point.
OP, is you husband in a union?

nicechap

My 2p worth.

you need to be careful with the language you are using.  All employers have a legal obligation to provide a safe working environment and working practices (duty of care). So the trucks need to be roadworthy, insured and not work excessive hours and ensure breaks are taken.

I'm not a doctor but emphysema and pulmonary fibrosis are chronic and non reversible so could very well be classed as a disability if they affect mr frogs day to day live. But if they do, do they make him unsafe to drive? As a professional driver he should always check he has a safe driving position (can see his side mirrors, reach the brake pedal etc), these should be part of his pre-driving checks.  If you are saying he is not capable of doing that every time he drives, that calls into question his safety on the road, which the employer has a duty of care to ensure.

as I'm sure you will understand, having a dedicated hgv for him which no one else uses would mean it not being used for an awful lot of time (66%?), and as a hgv costs many many thousands of pounds, having it not in service so such a long time every week is not a reasonable expectation for the employer.

having a better/ more understanding rota though should be doable if they have 10 trucks on the go, and he should certainly demand proper rest time between shifts - 9 hours is not safe in my view.

frogga

Thank you again for the replies.  I do totally understand the hygiene points. You are right.  I guess as a worried wife of 30 years I really just want to look after him, and I'm fed up that his illnesses are affecting him so much.  He too is cheesed off with it.  He wants to work, and he is probably getting those things out of proportion. 
He has Rheumatoid Arthritis, Pulmonary Fibrosis and Emphysema which they are calling COPD.  He also has Kidney disease due to the medication. To clarify the agency worker point, MR Frog's lorry is used overnight by an agency worker as some of the other gentleman that use the other lorries sleep in them overnight.  They are not living locally, so they use their lorries as their homes. On the occasions that his lorry is used it is usually because the office staff have forgotten Mr Frogs requests. Not for any other reason. The night job usually makes the firm £20 or less.  I think he feels he is worth more than £20. I think he feels as he has shown them loyalty and been a good worker he is hurt that they don't feel the same for the sake of £20.  I guess business is business.
He is not in a union, I did try to persuade him a while ago but the firm said they don't recognise the union anyway!
LOVE the widget story thanks xxx