DDA and reasonable adjustments post transplant - AIBU?

[RhodaBorrocks]

I have a fairly rare eye condition, and in 2012 I received a cornea transplant don't recollect I've ever mentioned that before . I've had 3 major rejection episodes requiring hospitalisation for aggressive IV steroids, plus numerous small rejection episodes I have self managed with close guidance from my consultant. I've had steroid tablets, drops, IVs, and strong immunosuppressant tablets and ointment to control this. Currently I'm just on the eye drops, but the last major rejection was in January this year.

The aggressive steroids I've been on and off of over the past nearly 5 years have taken their toll and my immune system has never returned to fully functioning. I work in a busy back office (no contact with the general public) where a lot of people come in sick because we can only have 4 episodes or 10 days sick in a year before having to have a formal review.

Needless to say, I've had 6 episodes of sickness this year and have now been flagged as problematic. I had a review today and despite explaining all this, the HR woman has still said I need to reduce my sickness or I will get a written warning or more. I may possibly be able to get disability related absences recorded separately as a reasonable adjustment under the DDA, but my trust makes you go through occupational health to get this agreed upon, and the HR woman didn't want to refer me to OH as 1. I'm under specialists and 2. She felt I should at least try to improve my sickness before going down that route.

My line manager has been nothing but supportive and had assured me not to worry about this, it was just a formality, and I think they were a bit blindsided by her attitude. I felt that forcing me to 'try' to improve was rather discriminatory, and I pointed out that they had taken me on in good faith with me having disclosed all of this, as I started there 2 years after my transplant.

Bearing in mind a weakened immune system is a consequence of the treatment I am on to prevent rejection and this is a lifelong thing, i'm more than willing to go to OH to push for a reasonable adjustment to be made. Do you think this is reasonable of me? This sort of thing will happen no matter what job i'm in if others bring illnesses in, or I pick up an illness just from general daily living. I can't see how changing jobs or being redeployed would help, and if they tried to dismiss or retire me on health grounds I know the DWP would find me fit for work as my good days far outweigh the bad.

Can they do anything else to support me? Should they? Or should I just start living in a bubble now?

You definitely need to be seen by Occy Health. You say trust, so I assume you're an NHS worker. Have you had a good look at the management of ill health policy?

Ultimately, you can be dismissed/retired due to ill health but it's a heck of a procedure and yes, you're right they need to be doing things first e.g. looking at whether you need to reduce your hours or work from home.

Oops, I thought I'd removed all references! Yes i'm NHS. I've been led to believe as I work with the computer used patient records that home working wouldn't be allowed. I'very already reduced my hours a little but as i'm also a single parent who is NC with DS father I need all the money I can get!

*computerised.

Oh and yes, the policy is where it says that people with disabilities can see OH and ask for their absences to be recorded differently. I wasn't told about that and had to bring it up in my review and say I was happy to go to OH (especially as they always clear me to work).

Would there be chance of you being less sick if you didn't work for the nhs, for ex local government etc? If youre dealing with sick people everyday it might be better to leave.

Its a matter of balance and what is "reasonable" will vary from one person to another.

It is a common misconception that if you have a condition which amounts to a disability then you can have indefinite absences without it affecting your employment. That is not the case. Ultimately, if you can't do your job (with a "reasonable" level of adjustments) then you can be dismissed.

(I'm an employment lawyer)

You wouldn't be allowed to work from home, no. I worked in the NHS and it was banned. Bear in mind occupational health could agree with HR. I had what was deemed too many absences, different conditions but my employers attitude was the same. In the end I saw occupational health who said I needed to make changes to enable me to work (I was advised to stop things I did out of work to increase ability to work), restrict hours or leave.

My disabilities were known, as was my disgust at their refusal to allow time at another trust for treatment (there was no choice as mine didn't offer it) as the policy strictly only allowed time off for the trust I worked in, and, they refused to pay for 'external' letters (specialist letters cost a fortune).

My trust refused to allow extra time off for disability related illness because they said it wasn't fair - on non disabled people. I was allowed time off via annual leave (always refused due to unpredictability of illness meaning notice was too short) or unpaid but that too was strictly monitored.

I was the disabled staff rep when the sickness policy was decided and refused extra time. Looking on their website it hasn't changed. None of them understood how disability can impact on someone and that it varies massively. I quickly got why there had been no rep for disabled staff!!

Our occupational health was done by ATOS who told me to claim sickness benefits. I was then assessed fit for work by ATOS. So yes that does happen. There's a massive gap between sickness benefits and being able to work - that's the gap a lot of people sit in with illnesses/disabilities unseen.

I couldn't have JSA as I'd left work on medical grounds so kept being referred incapacity benefit and JSA!

Fleur I don't deal with patients. I'm in a back office in a non clinical building.

Atticus I do understand that, and that's not what I'm asking for because that would not be a good precedent to set and would be a very slippery slope.

But my argument is that they took me on with a not so good sick record because they thought I was the best person for the role and my line manager has no concerns about my fulfilling my contract. My sick record is vastly improved from where it has been, but I've had 6 episodes, totalling 10 days in the past year. I've not gone over the days trigger, but I have gone over the episodes trigger.

They've put physical reasonable adjustments in place, but the HR woman didn't want to even mention the possibility of my going to OH for a review and simply said I needed to improve or face getting a warning. It was only when I brought up the policy and suggested I could refer myself that she backtracked, but still actively discouraged me self referring and said my boss should refer me if I'm sick again in the next 6 weeks. Why wait?

I don't have a problem going to OH now to be reviewed and to see if they think it's a reasonable adjustment, and I'm willing to accept they may think it isn't, but at this point they've given me a big screen and said "There. Reasonable adjustments are in place. Now you're fine!" They've not really looked at reduced hours, a different office base, home working or adjusting my trigger point slightly, which is where my gripe is. I feel if they were to proceed straight to a warning without exploring all this then it would be unfair, hence I'm prepared to explore all options rather than just not get sick for the next 3 months.

TBH I've been through this all before and usually have to get another job before I get a warning. The problem is I always disclose this stuff in full, OH and the DWP always say I'm fit to work, but once I'm in the door everything changes.

Do you want to reduce your hours? If so then make an application and reduce your hours. You don't need a reasonable adjustment to do that. You don't get paid for full time though whilst working reduced hours, you are simply paid for the hours you work.

Bloody hell, that sounds ridiculous! I work in the civil service and occupational health would be the first step - they're the ones who would actually be able to advise your manager. Sickness absence warning times can be changed via them too. I thought the NHS would be better on this sort of thing but it doesn't seem like it! You could apply to access to work, but I'm not sure if they can recommend adjustments for sickness. Worth a try though, they might have some other ideas that could help.

Sounds like you're in a nightmare situation.

Becca My trust allows it for certain departments. Many people in my department work from home - even my manager who also deals with medical records, so I don't understand why I'm not being given that option when others who have the level of access I have can, and those who are on the same pay grade can. I think it's probably a cost thing - they don't want to pay for a laptop and phone for me.

In a previous role I could work from home and my record was exemplary.

Re home working you've already explained yourself that it can't work (not many jobs really lend themselves to home working). Plus I'm struggling to see how it would help? Your issue isn't travel or mobility related. If you're too sick to work then you're too sick to work.

How does a change of office location help to remove the disadvantage that you suffer when compared to others as a result of your condition?

atticus it seems obvious to me that working from home would mean avoiding picking up other people's bugs, plus on a bad day it could mean the difference between being able to work or not. I appreciate you have much more legal experience than us, but life as a disabled person working is basically a juggling act that's probably not easy to understand if you haven't been there.

Atticus it wouldn't be ideal as I'm a single parent with NC and no maintenance with the other parents. I live in an eye wateringly expensive area which I can't move away from as my support network is here with me. So I need the money as even sticking to all the rules housing benefit doesn't cover my rent. I've reduced to 32.5 hours pw for now. If there's no other way I guess I'll have to. A job has come up in my department for fewer hours but a pay grade up, but I would lose my supportive manager and gain one who I've heard on the grapevine is a bit of a nightmare. My family says for the sake of fewer hours I could suck it up and deal though, as I could do the job standing on my head.

Living I've been through AtW. Hence they've provided all the recommended equipment and consider the problem solved.

Unfortunately there is a real culture of considering all medical issues to be 'fixable' and the assumption that now I've had my transplant I should be better now. Sadly for many health doesn't work that way. I actually have qualifications in public health so this is something I've studied and written theses on. It's a shame I'm too far out of academia now to go back really.

I do understand, I specialise in discrimination and deal with these issues day in day out.

The issue from a legal perspective though is that the adjustment has to be reasonable. If there are genuine issues with patient confidentiality which prevent home working then home working as an adjustment is unlikely to satisfy the "reasonable" requirement. If it doesn't then the employer is not obliged to put it in place.

It is possible that you could ask for partial home working on days when there are tasks that could be completed at home?

Definately insist on going to occ health and getting things done properly. If you are only taking short absences because you have a lower immune system then it would be unreasonable to not allow you some more absences than people who have not got your disability. Record everything on writing from now on, join the union and take someone with you to meetings when you can. HR are not there to help you in anyway. OH may also suggest things like your own keyboard and mouse and phone to reduce exposure to germs etc. Do they provide antibac wipes to clean the desk and chair arms etc everything before you sit down? That sort of thing. I work with someone on similar drugs and she does all that when she comes in on a morning to reduce infection risk. And we all avoid her when we have a cold or anything to help her stay well.

Yes it's about not picking bugs up, or being able to work when I have yet another stomach bug that I'm not allowed to come in with (stomach bugs are a big problem for me and necessitate 48 hours off each time to comply with policy).

Office location - I work the furthest location away from my home. There are 2 other sites closer to home that would reduce my daily commute and stress (which impacts on immunity). I don't want to drip feed but I do have some invisible mobility issues too. I have an underlying rare form of a genetic condition which causes all my issues, including the eye condition that can only be treated in my case by transplant.

But the problem is I have good days and bad days. Even on my worst days the DWP have said I am fit to work and am not entitled to PIP (believe me, I've tried it all). I have no choice but to work until I become 'disabled enough'. It's a horrid position to be in - I know I won't get any better so instead I have to hope I get worse!

Definitely join a union if you can. They've been brilliant for me and can argue my points much better than I can!

Is it EDS?

Yes Living it is. A rare/little known form of type 6, hence all the eye issues.

I let my unison membership lapse when I was made redundant several years ago. I will rejoin.

OP I have no useful advice, but wanted to extend my sympathy. I too have been in this nightmare situation, and in the end had to leave before I was sacked.