NHS equality for disabled staff

[Tooscaredtoorocktheboat]

Hey, name change and sorry about length but don’t want to drip feed and lack of clarity for fear of outing details

particularly interested in hearing responses from NHS staff or anyone who is knowledgeable about equality law

Ive been with NHS for a bit, I’m still on regular probation and have A long term medical condition classed as a disability. So far no issues and probation is proceeding fine with no issues.

I was open and honest & only reasonable adjustments that came up at pre interview stage was hours. After I was offered the job it came out there may a requirement in future for a change to shifts. I told them I couldn’t do it due to disability. The manager seemed a bit pissed off but also said “don’t worry it’s not on the cards yet and we wouldn’t make you do anything you can’t do” so I accepted the job at agreed hours.

after I started I approached the manager about another reasonable adjustment I needed and have had the last 15 years (regards annual leave) and how can I ensure I get the time I need.

I explained I want to use annual leave rather than potential sick because I don’t want to use my sick pay for regular health related stuff due to reducing my sick pay allowance, disadvantage to my attendance record and also put them in the shit by unplanned absences because it puts the service under strain. I know using my annual leave works to manage my condition as I’ve not had to have any sick time off with it for years although I’ve had an unplanned hospitalisation (which resulted in change to annual leave to better manage condition) a fair few near misses and flare ups.

They were pissed off (comments made about wishing they’d known at interview!!). Outcome was I was told to request my AL as soon as allowed too in advance using the normal department process/policy because if I was given reasonable adjustments and allowed to book them separately they could be accused of treating me unfairly as they had to treat ALL people equally (but equality act allows for this if it means preventing disadvantage so work are protected from this accusation ‘anyway) and they were “sure” I’d have the leave I need by following the process (sounds possibly like a first come first served)

I don’t know how annual leave is granted but There’s no guarantee despite the reassurances of it not being a problem I will get what I need when other colleagues don’t even follow the stated procedure (ie requesting too far in advance so if it’s first come first served I’ll not get my leave if people put requests in early before me)

I’m worried I’m going to end up having to take sick days to either manage my condition or even worse end up Flaring up and being ill, which then leaves me a disadvantage. My requested leave isn’t unreasonable (ie not at key service times or all in school holidays - I’m not taking the piss). If I need to take sick cos I wasn’t granted the leave they’ll have maximum number of staff on leave plus me off sick so down on service level (plus anyone else off sick!)

I’m too scared to ask again in case they ditch me at end of probation due to being seen as difficult.

question? are the nhs crap when it comes to disability discrimination and reasonable adjustments for disabled staff?

the aibu?

yabu: you should bring this up now with management and see hr about getting your reasonable adjustments

yanbu: Don’t rock the boat. Wait til probation finished - Take whatever annual leave they give and then take sick as needed then try to sort out later through hr and occupational health when in a stronger employment position

any advice/suggestions?

Are you even able to book leave for 12mths away- when you haven't even accrued it as yet??? I don't know if the NHS A/L system works like that so I'm asking?

I think part of the reason I’m panicking is I can’t afford to be sick. but more importantly a severe recurrent episode could make me seriously injured/ill and or dead 💀

i had an (unrelated) operation a couple years ago that I had to be off for nearly 4 weeks and I was terrified I wouldn’t get paid or only get ssp which doesn’t even get paid The first three days. I can’t even afford 3 days off unpaid 🙈 so I really really don’t want to be off sick at all! luckily I was entitled to full Company sick pay due to length of service but my manager was even then “well it depends on how much time you’ve had off the last two years” assuming because of my disability I’d had loads off

I was quite happy to point out BECAUSE of reasonable adjustments I had none in 13 years bar being taken to hospital 🙌

I said as well in previous post that I’m worried if they refuse a week and I have to take a later week depending on availability that I’ll end up needing sick leave right before annual leave and they’ll think I’m taking the piss 😭

I see what you mean about maybe planning to quietly approve the requests.
I’ve got all authorised for this year but then they’d already put in a lot this year before I started and we were in the requesting period. I’m waiting on them starting next years authorisations even though we are within in the “booking in advance periods” and that’s stressing me out too because I’ve got no evidence of how it’s going to work yet.

plus the fact that some members of staff are blatantly disregarding the “requesting policy” and requesting way too early

My other replies may explain a bit better

Please let me know if any queries and/or advice

Yes and my workplace has a named rep

Yeah I guess, on the assumption you aren’t going to leave.

my previous job you requested a full years A/L a full 5 months before that holiday leave started!

when I left they worked out my pro rata allowance from start of annual leave year to finish date and then if you’ve taken more annual leave than accrued they just knock it off the final salary. If you are under they pay you what you’ve not taken in final salary

I havent read the whole thread but have a couple of other thoughts.
Have you actually had your requests turned down?
Have you had any additional discussions with management/HR?
I really think you need to continue to have open and honest conversations with your manager and HR.
From your post it is unclear of your requests have been denied or if you are just comcerned/anxious that they will get turned down.
Managing a team of over 30 the only times I'm not able to meet the majority of requests are peak holiday seasons and even then we can usually find a reasonable negotiated position.
If 10 people ask for Christmas off then the 5 that worked last year would be given priority this year.
If 5 people ask for the same week in August I'll ask on the first instance of anyone would consider another week, if not then will look at first requests. We encourage all to plan leave as far in advance as possible

Because my illness flaring up can cause injury or even death and it can be highly unpredictable. It’s not a case of simply just taking sick leave as and when needed. The whole point of management is to prevent serious recurrence. Small flares are ok although preventative management is ideal. But the main aim is prevent the full serious flares.

the purpose of the set annual leave is to PREVENT flare ups. The annual leave pattern has been worked out and modified Over the past 15 years based on 25 years of Illness history

the reason my sickness record is so good is BECAUSE of all the reasonable adjustments I’ve had at work including using annual leave effectively at a time when my illness is historically worse and providing adequate rest periods through this time. Without enough rest weeks through this period I would have multiple flares and time off work as well as being at risk of complications, as well as steps I’ve worked out and out in place to manage the situations which exacerbate the illness. The illness itself does not follow a set pattern and everyone with it has different experiences so reasonable adjustments are individuals and individuals with the same Illness are never comparable.

some sufferers are so sick they can never work. Others may have one flare once in their life and never have another.

my illness is symptomatic at other times all year round but isn’t as severe and therefore doesn’t have serious recurrences which would necessitate sick leave as it’s usually short lived and doesn’t progress to a point of seriousness as it does at other times of the year.

No they haven’t been denied it’s just pure anxiety about what if they are and where that leaves me. I don’t ask for any school holidays bar one week so we can have e a family holiday and I don’t request other key business times such as Christmas/Easter

i think I’d feel better if there was some transparency over the holiday allocation or if there was an option to state why the leave was being requested. I cant even add an alternative request eg the week before/after to keep it balanced in line with my illness history. So by the time they do the allocations they could refuse mine and then there won’t be any options either side because they’ll be allocated elsewhere.

i don’t want to get sick - it’s too risky. I don’t want to have to use sick leave. I just want to stick to a system that has a pretty good track record of helping to keep my disability at bay but felt when speaking to my manager that they didn’t seem to get it or appreciate why it’s so important and also felt like I was being shut down. I know there are other routes open but I don’t know what to do for the best

Honestly OP it seems to me that you're making a mountain out of a molehill due to your anxiety over your condition.

Unless you require specific weeks with no ability for deviation (eg every 25 days you must have 4 days off/you have to have a week off every 6 weeks exactly, to the day etc) then this just seems like a lot of anxiety for something that might not even be an issue.

Yes you need time off at specific times but if you can be at all flexible (eg you've requested Monday -Thursday but they only have Tuesday - Friday available and you're happy to move your leave by a day) then most employers will be happy to work with you.

I think the issue is that you are going into this defensively which your boss is taking as you seeming to want special treatment when there is already an adequate AL booking system - you're wanting to talk to them about making a reasonable adjustment and accommodation of your disability to have a different system for you to book AL when you could potentially just book your AL in whatever configuration you need it in the existing system without issue, and if one does arise then that is the point at which you discuss it as a reasonable adjustment.

IE if you want to request the last Thursday and Friday of every month off and put all your AL requests in ASAP when the booking window opens but Jane has booked the weekend at the end of July for her daughter's wedding and John has also booked that weekend as he's going away for his wife's 50th ... most employers would look at the requests and work out the priority - has Jane's daughter already booked everything for the wedding? Has John booked the flights/hotel for his wife's birthday? Can either of them easily change their plans? Could you have the Wed/Thurs or the Mon/Tuesday off instead?

There are so many ways your employer can make adjustments to the holiday system within the existing template for individual needs that there is no need to complicate things by creating potential issues before they have even arisen.

I work in retail and we have an online holiday booking process that does not have anywhere to note an "official" reason for the leave request, but we can always just speak to the supervisor/manager in charge of doing the rotas to see the "holiday book" which is just a diary the supervisor uses to keep track of who has holidays already approved, how many people are off on any given day and any blackout periods. This book is not binding but if you know you need a specific date off then before you book through the online system then you can check the book to make sure the max number of people aren't already off ... but if the day is "full" but you have a specific reason for needing leave then you can have a chat with the supervisor who can then either approve your AL request even though the day is full and adjust the rota, ask someone to switch with you (I have often happily switched a holiday because a colleague needed it for an event whereas I'd just booked the day off because I had AL to use up and was happy to take it on a different day instead)

I think it would have to be decided on a case by case basis of request, if they chose to. If there are already people on AL and there is no EFT to accomodate yours, then it would have to be refused. Your sick leave is there for sick leave. You can ask, but there is no guarantee they would have to give it to you.

Yes There is a “booking policy”, I’m following the system as per policy as directed to do so when I spoke to them, but then other colleagues are not anyway so this also is leading me to worry that by the time I put my request in according to policy it will already be full because I’ve followed the rules and someone else hasn’t.

Also by the time we find out, the weeks before and after could well be full too in which case they would also be refused. I shouldn’t have to ask people to swap etc. i have the right to confidentiality around my illness and if I need time off then it should be down to the management to sort that out in a way that treats me with dignity and fairness but doesn’t leave me at a disadvantage, ie telling me to have a later week knowing that could cause a preventable recurrence or expecting me to wait til I’m already ill and then taking sick leave. Hence why I’ve raised the issue now ahead of time to see what adjustments may need to be put in place but instead of them following the procedure they should follow they’ve just said “use the system because we can’t treat you unequally” but that’s completely wrong information when it comes to Adjustments and disability. Which makes me feel they are ignoring it.

There’s Also been No guidance or reassurance on sick leave policy for me - They could have said when I asked “then you take it as sick leave and do not worry about it” but not even that.

this has come on top of their lack of foresight to do what they should do surrounding an disabled employee to ensure their needs are adequately met, some questionable comments which implies discrimination could be an issue and coupled with the implications of what me getting ill can mean and knowing that deviating from my reasonable adjustments in the past has triggered flare ups I think my anxiety is quite justified. I’m not only worried about getting ill and what that can mean for me health wise but also what being ill can mean for me in the workplace in terms of having to call in sick with potential further discrimination.

I mean let’s be honest if you were a manager and paul’s holiday request got refused then he called in sick….you’d think he was taking the piss.

Or Janet couldn’t take the week she wanted and the next available was three weeks later, but then one week before her holiday her condition deteriorates as it’s been too long since her last break and she calls in sick the week before she’s got annual leave booked, you’d think she was taking the piss.

That’s what I’m worried about. I’d rather use planned annual leave well in advance to manage and mitigate risk according to illness norms/history than leaving it and getting sick and having to use sick. We know using AL in a certain way has led to me being able to work mainly safely and avoided serious illness in the past. Great for me and great for my employers because I’m in work performing exceptionally and meeting service expectations instead of in and out on sick leave, underperforming because I’m getting sick and the strain on the service due to unplanned absence.

My fear is If I can’t have the annual leave because it’s full, then I end up ill and on sick & the service is under pressure do I then risk getting a bollocking for creating that or being accused of not being genuinely ill because I’d had annual leave refused on or around that time? It’s stressing me out massively.

I'm not sure I've understood this correctly. Generally when you start a new job you're asked if you have any leave planned for the coming year. If you've declared a disability you're also asked about reasonable adaptions. You're situation kind of brings the two together. What I can't understand is why you're only mentioning it now.
It's impossible to say if your requests are reasonable without knowing the complexities of your employment. You've said 'key times' such as Christmas, school holidays aren't whatvyou want so that will be good for the team, but you've also said other times might also be times when the service is under additional pressure. I'm going to guess this is seasonal and weather related. If other staff have already requested AL during these dates then I'd say it's unreasonable to expect to have those days off this year as it will impact on the service.
Going forward, I think it might be difficult to guarantee you always have the specific dates you request without disadvantaging other staff. It's also going to be very difficult to 'prove' you need this. You may feel that your method has worked very well for the last 15years however this could well look like your condition actually isn't impacting on your ability to work. If what you're saying is that your condition means you're not able to work unless you have specific dates off, then I'd say you've withheld important information about your disability.
Km also curious how critical the timings are. For example if you planned a week off in July, would it matter if it was wc 7th, 14th or 22nd. I'd imagine if you want a week off within a 2 week window you've more chance.
Wait till you get your AL requests approved (or not) then arrange to speak with your manager. If you printboff a couple of year planners it might be easier to demonstrate in visual form.
If this doesn't work for them, and you're not prepared to risk your health, maybe part time is more viable. The thing about reasonable adaptions is they need to be reasonable. If it impacts heavily on the service they're not reasonable I'm afraid.

@Tooscaredtoorocktheboat

1. Posters saying you can’t take annual leave when sick are incorrect HMRC vs Stringer case law.
2. The EA 2010 states “20, 3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
3. The current leave booking process is a practice that puts you at a disadvantage due to your disability. Booking and having your leave approved in advance is removing a barrier by helping you to managing your disability.
4. Ask your manager to refer you back to OH, explain they should specifically ask if having leave approved in advance is a reasonable adjustment under EA2010.
5. As pp have advised you need to be careful how you word discussions around sick leave. As you have found on here it is a sensitive topic as the public sector are often criticised for levels of sick absence. There is a culture of managing attendance and anything that might appear to be seen as an entitlement is jumped on. Some posters have misunderstood that you are actually trying to reduce sick leave by managing your disability.
6. The Managing Attendance policy will probably have trigger points for sick absence. Good practice is that trigger points can be adjusted for a disability. Usually OH are asked what are the appropriate trigger points for you. This is to recognised that in addition to the usual illnesses etc. a disabled employee may have disability related sick absence. So if you do have to take a day or week related to your disability there is some leeway.
7. I think you need to put in writing to your manager that you are disabled and require a reasonable adjustment of taking your annual leave as follows (set out dates). This pattern of taking leave enables you to manage your disability. Do not mention sick leave.
8. Ask HR if the have Workplace Adjustment Passports as this will help you document the requirement to save you from having to explain it each time you get a new manager.

For all other posters the law is clear a reasonable adjustment takes precedence.

For example, every employee has the right to request flexible working but it can be refuse, partially agreed etc. A disabled employee who requests flexible working as a reasonable adjustment is legally entitled to it even if others have been refused.

In the OPs case, taking her annual leave at set times of the year is a reasonable adjustment and she would take precedence. The key is that an employer can be found guilty of disability discrimination for not granting the reasonable adjustment (annual leave).

So basically you want a/l at set times to manage your condition?
As others have said, I think you’ve confused the situation by talking about sick leave as it sounds like you want to take a/l instead of sick leave.
You need a OH referral and it in writing in your report that you need set a/l to manage your condition and prevent you becoming unwell.
Have you already mentioned this before taking the post as usually any leave that has already been booked would be honoured.

My advice would be to stop talking about sick leave. It’s not a badge of honour to have no days off sick. You need to talk about it in terms of managing your condition and health and preventing you becoming unwell.

Yes, NHS are crap. They bleat about being disability confident but when it comes to the crunch they shy away from disabled employees and make you feel like a nuisance. I was once told they never would have employed me if they’d have known I had xx (long term condition covered under the disability discrimination act). I’ve also had to fight to get my sick time increased, it’s now 50% higher than other people’s. Oh, i’m sorry I couldn’t come to work as I was unconscious in hospital in ICU 🙄 🙄 I could go on…

I would agree OP you need to put this in writing, preferably with evidence from HCP involved in managing your condition as to why you need this adjustment.

Out of interest @Foreversearch would an adjustment still be considered a "reasonable adjustment" if it disadvantaged everyone else in the dept?
Eg a small dept where only 1 person can be off at a time and the person needs to take 2 days off in the last week of every month meaning no-one else can ever have that week off?

This exactly - I'm a manager, and having dealt with situations involving reasonable adjustments and occupational health this is correct. Occupational Health and HR will inform me of the adjustments I have to make, I get no say in them, and it doesn't matter what other systems are in place that the other staff have to adhere to.

Honestly I used to just consider the people under Occ Health with different schedules as slightly separate from the rest of the team - so I would work out holidays based on the team members who operated under the normal systems, that way we were always covered regardless of adjustments. It's not that difficult to manage, even on smaller teams.

@Tooscaredtoorocktheboat there are 52 weeks or 260 days in a year, at most a disabled employee would have 45 days or 9 weeks leave, meaning there are 41 weeks or 215 days each year when other employees can take their leave.

The op has suggested their is some flexibility I.e. by 1 week, but not much more otherwise they become ill.

The question I always ask is, if you were a witness at an employment tribunal how would you justify your decision not to make a reasonable adjustment to consider and approve the leave 12 months in advance?

The adjustment costs £0, it only impacts others for 45 days out of 260? Other staff also get 45 days leave and the disabled employee covers for them in the same way their colleagues cover for them.

You might be worrying over something that hasn't, or won't, happen. I understand it that you want to book your leave well in advance as you know when best to take it. So put the booking in, and if any if refused THEN deal with it. Don't add stress where it might not be needed.

The pressure points over annual leave are school holidays, Christmas in clinical departments and March when too many staff haven't taken their leave.

I love staff who plan their leave ahead and space it out over the year, so I agree that your requests will most likely be completely fine - even before raising your disability.

The bit that would concern me is the suggestion that you need annual leave to prevent being sick. I understand it isn't your intention, but what a manager might hear is "I will go off sick if I don't get my leave".

I would phrase it more positively. Say that you like to spread your leave out to stay healthy and refer to occupational health if any leave requests get denied.

I would also make sure that you understand with Bradford scoring it is the number of episodes of sickness that significantly affects your score. More so than the days off sick. If you do need sick leave, don't rush back too soon and risk further episodes. If necessary, work with OH on a phased return to work to avoid this.

But most of all I hope you stay well and enjoy your job.

My pre booked annual leave was honoured. it was mentioned to occupation health in pre job offer assessment but when I mentioned it to manager they said that’s nothing to do with them as they don’t see it so not sure what the point even was.

i went into the initial conversation with the manager saying that I need my annual leave as a set pattern to prevent my condition worsening and asked how to request it so that I wasn’t disadvantaged and the response was I had to request it the same as everyone else as I couldn’t be treated differently, as to give me special treatment isn’t treating me equally. No attempt to refer to occupation health or HR, there’s been no attempt to ask me how my condition “works” and what affects it and what reasonable adjustments I need. Not even a risk assessment which should have been done. It feels like an “ignore it and pretend it doesn’t exist” mentality.

Sick leave wasn’t even mentioned at that point. I only mentioned it and my concerns about having to use it at a later date when holidays next year haven’t been authorised even when we are into the requesting period so I’ve no idea when they start authorising them and I just got shrugged at and told to speak to a senior manager.

they did say if I requested the A/L as soon as possible it “shouldn’t be a problem” but I’ve got no guarantee of that, other staff are requesting them too early and it’s causing me a lot of anxiety because the alternative means getting ill and taking sick leave which I do not want to do.

I definitely do not see not having to take sick leave as a badge of honour. I’d prefer to be in work and healthy, particularly in view of the fact me getting ill could be very dangerous, but seeing as there are negative consequences to having too much time off sick I’m also not sure why I should be comfortable with just taking loads of sick leave for a long standing disability that can be prevented and managed in a relatively simple manner

It sounds like your manager isn’t particularly supportive. If it is already causing you so much stress you may need to consider if this job is worth it. Can you talk yo someone in HR?

Thank you.

i have two separate weeks in the year that are “usually” the first week of term time so I try to add a week of school holiday to one of these to allow us to take a family holiday. It means taking my child out of school for some of it but school recognise it as extenuating circumstance and authorise it. I don’t request Christmas.

There is some (very) limited flex. Eg a week either side or one of two possible school holidays as mentioned but cos of the way the requesting process works I can’t specify that.

i didn’t say I’d go off sick if I didn’t get my leave in the initial meeting but I did say I use my leave to prevent me getting sick and without taking it as needed I do get sick. So I can see how maybe a manager may misinterpret that into an negative viewpoint.

The pattern I need has changed somewhat significantly over the years to take into account further flares etc but it feels like the current one works pretty well. For me all I can think is surely it’s better for everyone including me if my leave is planned out well in advance and I’m staying healthy and well and in work as opposed to needing to take time off by getting ill when it could have been prevented.

The bit that’s left me feeling uneasy is the lack of them following any proper process with regards to me basically asking for reasonable adjustments and a comment about wishing they’d known this at interview. It’s that that’s made me scared to say anything more and wonder if I just need to keep my head down pass my probation and see what happens before chasing it up with OH/HR

i understand that it could well be the manager is quietly going to approve all my requests and wants people to see me asking for leave in the normal way so no negative comebacK for me and that’s fine if that’s the case. I’ll play whatever games necessary to prevent any strife from other members of staff for the managers but I just wish if thats the case they’d tell me so I’m not worrying and stressing over it like I am.

hope that makes sense. If you have any further advice re: if they don’t get approved and how to take it further without causing any strife please please feel free to DM. xx