Can employer ignore occupational health report?

(33 Posts)
Geekie Sun 18-Aug-13 01:34:17

I have an invisible disability, I was burned very badly as a child and the scars on my legs can be very painful when exposed to changes in temperature. I was badly bullied as a teenager because of my scars and since leaving my home town I have worn trousers and not told my colleagues that I have any problems, preferring them to think that I am welded to my car because I am lazy rather than unable to walk.
I am a social worker and was based in a hospital for over three years with no problems. I was moved to a community team in August 2012, initially there was no problem as there was parking but the team was then moved to a city centre location and I had to tell my employer that I would be unable to get to the new location because of my disability.
This issue was complicated by my brother dying the week my team moved. Initially I was signed off by my GP because of the bereavement but my manager is refusing to consider reasonable adjustments to enable me to return to work. I have been seen by Occupational Health Doctor who has recommended I be placed in a specialist social work post in the hospital that is currently filled by an agency worker, I am qualified to do this job, but my manager is insisting that I go back to my post in the building I can't get to after a temporary placement in the hospital to ''get me back into work following my sickness and give me an opportunity to gather more mefical evidence about my condition". I haven't been sick - I could not physically get to my new location and surely the occupational health report and a letter from my GP should be sufficient evidence that my disability xists. My union rep is a lovely person but is out of her depth on this. I put a grievance in in May but this still hasn't been heard. I am being forced out of my job by my manager's refusal to do anything to meet my needs. I am feeling very intimidated by my manager and I can't understand how I can get the extra evidence he wants. Any ideas about what I can do?

WafflyVersatile Sun 18-Aug-13 01:50:12

When you say union rep do you mean work shop steward or the union employee?

If the former contact the union direct, if the latter then I guess you keep pressing them to get someone who is not out of their depth.

Also you could check with the occupational health people on whether they can be ignored and what pressure can be brought to bear.

Can you go to the manager above or to HR?

Twiddlebum Sun 18-Aug-13 02:02:01

Are you a disabled blue badge holder?

missingmumxox Sun 18-Aug-13 04:30:01

unfortunately yes the manager can ignore the advice, is it is just that advice, good news is if they ignore it and you feel you need or they decide to medically capability you out of your job they are on extremely shaky ground from the sound of your case,
Not in all cases as the adjustments have to be reasonable, but if there is a agency worker doing a job you could manage then they swap you to that and they get agency to cover your old ground.
so things to be aware of, if the job the agency worker is covering a lower grade than you, then it is not unreasonable for your employer to ask you if you can work in that lower grade and that might mean less money for you, if you can't manage on less money, they are not unreasonable to medically capability you out.(years ago they would pay protect for 3 years whilst you could look for a similar pay grade you could do but as i understand it in public service now that option is pretty much gone)
If it is a higher grade they don't have to move you into that just so they can adjust your work, but if you qualify just happen to be a lower grade then they need to seriously consider it, but you may still need to be interviewed along with any other interested party,

I think you need to ask your union for a regional rep if your local rep is out of their depth.

good luck, sounds on paper like a good case but I don't know all the facts.

Unfortunately I know my mother's employer have been ignoring Occupational Health's recommendations about her deafness for over a decade. She is too scared to kick up a fuss and convinced they will fire her if she does. I think you need a union rep who knows what they're doing OP, and be prepared for a battle.

Geekie Sun 18-Aug-13 10:29:39

My rep is employed by union. The OH doctor recommended I be put in a location with close parking last December and confirmed I am likely to be covered by legislation. My GP also wrote a letter stating that my skin is constricted and can cause severe pain and nausea and can start after I have walked as little as 20 yards depending on temperature. He also requested that the adjustments made be subtle as he believes that my mental health will deteriorate if my privacy is not respected. In May I was referred back to Occupational Health because manager wanted more information, he requested that doctor refer me to a specialist burns unit. Doctor gave full description of severity of injuries, extent of skin grafts etc. She said that she could not do a referral because she is not my care provider. She recommended reasonable adjustments and said her opinion was thata hospital post would meet my needs as it provided general closeby parking and I would not have to do home visits, thereby reducing the time I am exposed to cold temperatures walking to and from my car.

Do you think that I can ask HR to get a more experienced person to deal with this matter?

Geekie Sun 18-Aug-13 10:38:00

Hi Tweedlebum. I have never asked for a blue badge because I want to avoid having to disclose my condition. I would never have applied for a job that didn't have parking, this was actually one of the things that attracted me to social work. I thought that 'essential car user' would pretty much mean parking too.

Geekie Sun 18-Aug-13 10:47:20

Hi missing mum, the agency worker is covering a job on the same grade as I am on. The substantive post holder and I both started in the hospital as newly qualified social workers at the same time. She has been on secondment for eighteen months to a higher grade and will not come back if she doesn't have to. I on the other hand am limited in my options since my employer moved all community social workers to the city centre. The hospital is the only location that meets my needs,
I don't want to be allocated a disabled parking space because my colleagues will want to know what is wrong with me and I would rather resign than have to explain what happened to me.

Geekie Sun 18-Aug-13 10:55:20

Hi Antoinette, I know where your mum is coming from. It is so frustrating that this issue could be sorted so easily without sacrificing my privacy. I am going to have to fight this because I have no choice.
Maybe your mum could speak to EHRC and get advice, I found them really helpful. My problem is that my manager just won't listen.

waikikamookau Sun 18-Aug-13 11:01:32

op you might have to swallow your pride and get a blue badge. your colleagues don't need to know why

Have you been in contact with your HR dept? It's very concerning that you raised a grievence in May with no further investigation.

Geekie Sun 18-Aug-13 11:35:08

It isn't pride Waikikamookau it is fear. I was bullied because of my scars - kids can be cruel but adults can be even worse. I decided over twenty years ago to conceal my condition and I have not been bullied since. I managed my condition without anybody knowing until I was moved to a different location. I then had to disclose my condition to my manager and look at how he is behaving. I am sure that the doctor's opinion would be enough for anybody else but he is demanding that I provide more evidence and seems to be really angry with me. I only met him for the first time face to face in May so there is no reason for him to carry on in this way.

Is there another manager you can approach and explain how this manager is making you feel.

I sorry you are being put through this.

Geekie Sun 18-Aug-13 16:32:42

Hi Everyone, Thank you so much for taking the time to respond. I haven't posted on a forum before so I hope that it is okay to send a group response. I appreciate everything that you have all written.
I have sent two emails to my union rep, one with lots of detail the second a much shorter version. I have let her know that I will go all the way to a tribunal if I have to and asked if it is appropriate for her to get a legal person to look at the case at this point.
I have also done a letter to HR asking that my grievance be passed to another manager since my current manager does not appear to have any idea what he should be doing.
I have also asked my union rep if she has heard of any other case where a person has been referred to Occupational Health on two occasions to be examined and been asked to provide a letter from a GP all of which stated clearly that I have a disability that is "likely to be covered by the disability discrimination provision of the Equality Act 2010".
I will post any outcome but in the meantime thanks for responding and wish me luck!

AlyssB Sun 18-Aug-13 21:36:59

If you are covered by the DA then it is classes as a protected characteristic and they are on very shakey ground indeed and should be very pro active in sorting this out for you, as from what you have said you would have a strong case at ET.

Your manager should not be dealing with the grievance at all, as it is essentially against them and should have been passed to an independent manager to conduct a thorough investigation. Please check your staff handbook for details of this procedure as failure to follow procedure set out could again at an ET be in your favour.

I am very glad you have been speaking to the union about this, and please please get HR as involved as you can, if they are any good they should be working hard to resolve this for you.

Geekie Tue 20-Aug-13 22:56:41

Hi All, I have contacted HR and they were told that my grievance was resolved informally two days after it was logged. I have been told to submit another grievance that will be investigated by a different manager. HR were not told that I started back at work which was why I was still on reduced pay - they are rectifying that.
One of the things I asked in my grievance was for my absence to be recorded as disability related not sick leave. My brother died on 31st October and GP signed me off stating bereavement as reason. I told my team leader that I wasn't sick and that I didn't want to ask my doctor for sick notes but she said that I needed sick notes or I could be dismissed. My doctor wrote 'disability issues' on the note he gave me in January. In February I didn't get a sick note in the hope that this would galvanise them into action about reasonable adjustment. I told my rep what I was doing and she sent me an email saying my condition might be covered by DDA but legally I needed a sick note. In the three and a half years I worked for them before this started I had two days off sick. I was proud of my record and I also need my leave to be sorted out.
We are having a meeting tomorrow and I am very nervous. I'd feel better if my rep was a bit more positive about my chances of the doctor's recommendations about my being placed in a hospital post being acted on, she thinks they will offer me disabled parking. Fingers crossed.

Geekie Tue 20-Aug-13 23:10:07

Hi AlyssB,
I never thought of going to HR before, they were great when I contacted them to see where grievance was up to and chasing up why
I was still on reduced pay.
I asked HR if we have a reasonable adjustments policy and they said no because every case is different. The Trust has one and it would have made things so much easier. I feel like I am in a battle when I should be being supported. Do you think that I could ask HR to sort out how the absence should be recorded and get them to look at my leave? It seems crazy that I had extra days entitlement because I had not been off sick for a full three year period and now if I do need to look for another job my sick record looks awful.

LovesBeingOnHoliday Wed 21-Aug-13 06:20:45

Hi op, I'm so sorry that you are going tgrough this, frankly your manager sounds like a knob!

I believe that yes recommendations do not have to be actioned. Although why reasonable adjustments would not be put into place when it is likely you are covered is not wise. There are a few reasons he could be doing this ranging from not understanding the implications to you or his employer to him having just decided you don't need one.

I'm glad you've gone to HR. I am shocked he closed your case and hasn't sorted out your pay. I hope this is resolved quickly for you now.

Geekie Wed 21-Aug-13 09:07:08

Hi LBOH,
I don't think that any of the managers have any idea and other is no policy covering reasonable adjustment. Because I wanted to keep my privacy I didn't tell my line manager I went to one of the service managers and told her I need a location with parking. She looked into it, said all general social work teams were being located to City Centre and asked if I would consider a specialist hospital post. I said I would be delighted. I am qualified for a specialist post and have over three years hospital experience. That manager said the only barrier was that it was a Trust post but she would make enquiries. This was before my team moved, I was in work but the move date was set for w/b 29 October. On 26/10 my brother was diagnosed with leukaemia, he was put on life support on 28/10 and died on 31/10. By 17/11 the post I thought I could have had been put out for expressions of interest and filled. I was interviewed but I think I was still in shock and was in the room for less than ten minutes. There were only two expressions of interest and the other candidate got it, the other post is still being covered by an agency worker.
I was referred to Oc health in Dec and she said I was likely to be covered and made recommendations. The original service manager I had approached passed me to the service manager who oversees the team I am currently in. In May just after I put in my grievance he met with me and said I could cover one of the posts on a temporary basis but he wanted more information about my condition and asked that I be referred back to Oc health. I then got an email to say I couldn't cover the specialist post because it was a Trust post. I asked him to ask if they would object to me being placed in it and he said no so I asked the HR at the trust who said it is not a trust post - it is up to the Council.
I can't understand why none of the managers will ask the Trust about the post. If they get the same answer as me there isn't a problem, butif my manager says today that I can have disabled parking in the City Centre I am just going to resign. My rep thinks disabled parking is a reasonable adjustment and I shouldn't worry about hiding my condition but she doesn't live in my body.

Geekie Wed 21-Aug-13 21:36:41

Hi All,
I couldn't face going into the meeting today in the end, I was too upset so my union rep went in on my behalf. She emailed me with an update.

He has advised that in order to provide you with reasonable adjustments HR have indicated that he needs further evidence to support your disability claim. This is the same process for every person who applies for adjustments under the DDA.
He is also planning to arrange a case conference with occupational health for them to provide their professional understanding of your condition and the impact of this on your ability to work, as the reports have not clarified the issues in relation to reasons for your limited mobility.

I have been referred to Occ health twice and Doc has recommended reasonable adjustments. My GP has also confirmed that on some days my mobility is reduced to as little as 20 yards. Is it normal for them to insist on a case conference with Occ health doctor.

Also is it normal for HR departments to insist on more evidence. I would have thought that Occ Health know what is required.

Geekie Sat 31-Aug-13 20:02:22

Hi All, I sent an email to HR and the matter has been passed to employee relations. GP has written a very supportive letter so fingerscrossed. Surely they will find a location I can get to...

LovesBeingOnHoliday Sun 01-Sep-13 10:57:15

Hope this is resolved quickly for you, seems Tgey are getting caught up in disabled parking rather than tge distance

BerylStreep Wed 04-Sep-13 19:48:24

If it really comes to it, and they deem a disabled parking space as a reasonable adjustment, you could lie to your colleagues about the nature of your mobility issues - something vague like 'dodgy ankle' could cover it without going into any detail.

I'm so sorry to hear that you were bullied about this in the past - it obviously hurt you very much.

Nerfmother Wed 04-Sep-13 19:55:59

I'm not trying to be unkind or suggest you have done anything wrong, but if you didn't declare a disability at the time ( and yes I know people can become disabled but that's not the case here) does it alleviate them of any responsibility?
It's the equalities act now not the dda - the ehrc website is very good and also has a helpline (official body)

Nerfmother Wed 04-Sep-13 20:03:40

http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employees_pay_and_benefits.pdf

This from their website and is factual not subjective. Chapter 3 is all about reasonable adjustments, when the duty arises etc. it doesn't look like it matters about when you told them?
Please have a look its really useful.

Geekie Sat 07-Sep-13 14:44:20

Hi All, Well HR appear to have taken this seriously. The good news is that I have had an email from my manager to say that I can be placed in the post that was originally suggested last October, it is only temporary but the substantive post holder is going on maternity leave in November so at least I will have a bit of security. My manager is still saying that despite having two occupational health reports and a letter and a report from my GP "we are still unable to independently medically substantiate your disability or offer clear DDA guidance. In response to this I intend to meet with the examining doctor to seek further clarification". He also intends to write to my GP to ask him to refer me to a burns specialist. He has also made it very clear that this is a temporary measure.
And Nerfmother, thanks for the link to the equality website, I have had a look and it is really useful.
I will update when I hear back from HR.

BerylStreep Sat 07-Sep-13 18:39:11

Good news, so far.

However, I think your manager is over-stepping the mark. He is not entitled to have the information about your disability. That's what Occupational Health are there for - for you to medically discuss your condition IN CONFIDENCE with them, and as a result of THEIR MEDICAL EXPERTISE, they make a recommendation to your management, which he ignores at his peril. It is not up to your manager to be making assessments of your condition, or indeed writing to your GP suggesting referrals.

Similarly, the only people able to make a definitive decision about whether DDA applies (Equality Act, but YKWIM) are the courts, not your manager.

I suggest that you contact Occ Health and clarify what permissions you have provided about what information can be shared with your manager.

I agree with Beryl about your manager overstepping the mark, what is your Union Rep doing about all of this?

Geekie Fri 13-Sep-13 07:53:40

Oh well, the news was not as good as I thought. I was told yesterday that I am not covering for the person who is going on maternity leave, I am covering the other post. The agency worker who has covered that post for twenty one months has been told that the post is needed for a disabled worker so that will be my secret out. Also the job the permanent post holder is seconded to has just been advertised. If she gets it I will ask if I can have the vacant post permanently but I can't see them saying yes. If she doesn't get it I will be back to square one because the post I will be covering will be advertised. I can't understand why HR doesn't just take control and sort this out. The law does say that a disabled person can be moved into a suitable vacant post without a competitive interview doesn't it?

BerylStreep Fri 13-Sep-13 17:15:16

Geekie I won't even try to pretend to understand all the different posts and who is currently covering what, because I am utterly confused!

However, my understanding was that a post can be filled without a competitive process if it is a reasonable adjustment for someone who DDA applies to. It certainly happens in my work (large public sector org). They wouldn't promote though.

Geekie Sat 14-Sep-13 06:57:02

Thanks Beryl, that's what I thought. I can't understand how or why this situation has happened. All I wanted was a job with a car park. I can live with the pain, I have to. I wanted to keep my disfigurement a secret but they have effectively destroyed my privacy whatever happens now. I wish I had just handed in my notice and signed up with an agency when the change of location was first announced. It would have been so much easier if my employer had a reasonable adjustment policy but HR says every case is different. There should be a procedure though, then at least everybody could be treated the same.

Musicaltheatremum Sat 14-Sep-13 22:11:40

I second what BerylStreep says. Your manager cannot have your medical information. I get lots of employers asking me for I formation about patients without going through the OH route and even with signed consent I dont give it, in fact I often phone my patients and they are not aware what they have consented to. It is scary.

Geekie Mon 30-Dec-13 12:16:08

Hi All, I wanted to let you know that I put in an employment tribunal claim and asked if it could be heard 'out of time'. My union refused to support me because I had left it more than 3 months before putting in the claim even though my union rep had incorrectly said that every time my manager refused to make reasonable adjustments this would trigger another 3 month window.
Clearly my employer's solicitor took my claim more seriously and I have just settled. Terms are confidential but I now have a secure job that meets my needs. Thanks to everyone who gave me good advice and messages of support when I was going through a very difficult situation.

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