Disabled partner misled by employer

[Pinkclouds80]

Struggling with this and very worried. Partner has a chronic condition that counts as a disability (had a blue badge & PIP), that gives him chronic pain. He has been self employed for his whole career which allowed him flexibility to manage bad days. He even lived part of the week with his parents until v recently, even tho we have kids, as that made life more manageable.

To give us more financial stability (think pension, sick pay etc), he applied for a job in the NHS that came with a lot of training, and we were delighted when he got it.

One week in and it turned out that the info in the job pack massively downplayed the physical demands of the job. He has to move and twist and crouch and bend into lots of positions multiple times a day - and he can’t.

He disclosed his disability on the application and to the occupational health assessor in the pre employment checks. The OH assessor was working off the same info he was, and didn’t suggest any specific risk assessment or adjustments.

Having wrapped up a business, and moved house, in order to change career, he is now looking and being taken through a sickness process (he’s not off sick, he just can’t fulfil his role), with the best outcome being redeployment into a junior role that is not remotely his passion, and does not include the postgraduate training and progression he signed up for.

Importantly (I think), the service has changed the job info they send to candidates now to say that the physical stuff is very frequent (not occasional).

As a grumpy old lefty who loves the NHS I feel grossed out by even suggesting this, but AIBU by insisting he considers going to ACAS, and making a claim for discrimination? This has really stitched us up and it’s hard to make sense of :((

Join the union and get a rep involved.

I work for and love the NHS but this doesn't sound right at all.

You may need legal advice around the Equality Act and the term "reasonable adjustment" it sounds like they aren't following it.

He’s entitled to reasonable adjustments to the role. Is there anything that can be done to reallocate duties or is the role just unsuitable?

if it’s just a role he can’t do then I’m not sure you can sue for anything, though I agree it’s a crap situation

The job doesn’t sound suitable and you both must be really disappointed. I hope he’s doing ok.

I wonder if the person who wrote the job description wrote it from a ‘healthy’ person perspective. If you don’t have any physical limitations it is easy not to realise how often you would be bending and twisting etc.

I have family in the NHS and they wouldn’t have wanted to end up in this position with a role working out badly for your DH. They tend to be quite wary of getting into any HR difficulties.

The union is very good and may be able to negotiate a revised role or a horizontal move.

What would be your optimal outcome @Pinkclouds80?

What type of discrimination? Direct? Indirect? Arising from? Failure to make reasonable adjustments?

Why did the role change? Has there been a re-referral to OH? Can the role be changed back?

It's difficult to say anything useful without knowing what the role is, what the physical tasks are, whether they're integral to the role, etc.

Is Access to Work a possibility? Eg to fund a PA to assist with the physical stuff? (Not sure if that would be a viable option without knowing more about the role, so just throwing it out there.)

@StormingNorman I think you’re right, about the assumption of a “healthy” person, but the purpose of that document is to give the applicant and the occupational health assessor the info to assess whether a person can do it or not. If it had said “you’ll have to manoeuvre yourself into awkward positions about 50 times a day” then he would not have applied, and if he had he wouldn’t have got through the pre-employment checks :((

I think optimal outcome would be a like-for-like redeployment into something with the same prospects. We agreed that he could take this job on a low salary and I would cover us for a period, as a longer term trade off. Now he’s potentially looking at a cul de sac admin job- having folded a fairly successful business. It’s poo!

@atticstage the role didn’t change, the content of the person specification changed once he stared and they realised that they had appointed someone who wasn’t physically able to do the job. He has been re-referred to OH, and they’ve set out what he theoretically would need in terms of RAs, and they are not feasible for the department or the training. It’s tricky because it’s not so much that they are failing to offer adjustments, it’s that the adjustments needed wouldn’t be reasonable. It’s that by giving him, and the pre-employment OH assessor misleading info, they allowed him to accept a role he can’t do and now he is a screwed.
it’s disability related obviously but it doesn’t fit neatly into a category :(

I think optimal outcome would be a like-for-like redeployment into something with the same prospects.

I would probably focus on how to negotiate that. Has he/have you looked at vacancies/job postings to see what role he could negotiate for specifically?

@spicysamosahotcupoftea good shout re union. I’m a senior manager in a vaguely similar field but he has never worked for a big organisation before and is a bit baffled by all the formality. If I can’t emasculate support him by being in the meetings with him then a union rep is the next best thing!! :)

I really feel for you both. I would certainly talk to an employment lawyer and see what he or she suggests.

@atticstage the HR person he’s spoken to so far seems very junior and either doesn’t know about redeployment or won’t share info. I would have expected a list to have been shown to him by now if only to show what might be ringfenced for him. I guess he has to go so far down the sickness route for the process to conclude he is incapable of doing this role, to then be put on a redeployment list. It’s just very niche (which is why I’m reluctant to share too much) and I wonder what happens if they only offer him something really crap!

Re discrimination I'd have thought they are on shaky ground if he was open about his disability and the role is not as described (which is explicitly evidenced by the change in the job pack). Demoting to a more junior role is also not a great look for them.

I'd definitely look into the viability of a claim in your position, given the financial loss he will suffer.

It is a really shit situation and I do feel for him (and you).

Access to Work exists to cover the cost of adjustments that go beyond what would be "reasonable". The role and training may still not be feasible but just flagging because people aren't always aware of it: https://www.gov.uk/access-to-work

My understanding of problem is the nhs interview panel can't not offer him the job if he is the best candidate even if he physically can't do the job as its discrimination. They aren't allowed to decide of he is physically able to do the job at that stage, its up to the candidate to decide

I actually wonder if the original problem is because the job spec was written by someone in HR with no clue about the job they were recruiting for.

Surely he can do a search of NHS vacancies either internally or externally without waiting for them to suggest things? It would be better if he was proactive about the redeployment route and had his own ideas about suitable vacancies. I wouldn't be waiting for HR to come up with a list.

Did he not ask for a walk round the department and talk with people he would be working with before he accepted the role?

There are specific tests and specific defences in the Equality Act. Some discrimination is lawful.

Redeployment is lawful as a reasonable adjustment if it's the only way to continue the person's employment - and that can be a "demotion" if that is the only suitable vacancy they could be redeployed into.

@atticstage thats helpful to know re redeployment being lawful even if it’s a demotion. I assume they would protect his salary and maybe he needs to try and negotiate some funded training to bring it closer to what he signed up to.

Also think you’re right about being proactive and looking at vacancies. At the moment he is just mortified - embarrassed to have to share more about his disability than he ever normally would, gutted to be in this position, overwhelmed by the uncertainty and in loads of pain from trying to do stuff he really isn’t meant to. I’ll get him on NHSjobs to look and start making suggestions.

My sense is the trust know they effed up with the inaccurate job pack and are banking on him just accepting what they say (as he is on a low grade and doesn’t have the clout of a higher band, maybe). I feel so angry for him. I feel for his manager too - six months of recruiting and onboarding to find they have to plod through a bloody sickness process and start all over again.

I think this is the case.

What a mess. It does sound like the trust has cocked up. Sadly my personal experience is that the NHS isn't great at getting its head round staff with disabilities. Though I was more protected as I was already in post, and things improved enough that reasonable adjustments (which kept fucking getting binned) were viable. If he isn't already in a trade union, I doubt they'd get involved if he joined now after the problem has already arisen. Does sound like a chat with ACAS might be a good starting point. Make sure he keeps his copy of the original description of duties very safe.

I assume they would protect his salary

Unfortunately that's not something they would be required to do, sorry. Although they could choose to, perhaps for a transitional period. It's certainly something to discuss.

maybe he needs to try and negotiate some funded training to bring it closer to what he signed up to

I think this is at least worth pursuing. Plus training generally for a redeployed role should be a RA.

If the HR person is inexperienced they may just be clueless about how much they don't know and what they could or should be doing, so the more information and suggestions he can bring to the table himself the better.

At the moment he is just mortified...

I can't imagine how he is feeling. It sounds absolutely gutting.

He might find that once he starts researching suitable roles to propose for redeployment that it will make him feel (a little) better because it will give him some control over what's happening (even if only in a small way).

And from there he might be able to start picturing a professional future for himself again, even if the journey to reach it is going to be a bit more of a squiggly line than he had banked on.

They need to be able to offer him more than that.

I do think though that healthy people wouldn’t even notice how many times a day they were moving about or consider most positions awkward. I say this as someone with a chronic pain condition too and my work just don’t get it when I say my timeframe for helping out with the bi-annual stock take is very short and that my muscles will be suffering for days afterwards.

The JD wasn’t written to intentionally mislead anyone and was obviously updated in response to seeing how someone with physical limitations was affected by the role, so they have learned from this. But it was their mistake and they need to do right by your DH.

Was it an office-based role? I saw you said it’s niche, but can you say what sort of things he was being asked to do? E.g. getting heavy equipment out of low cupboards.

Thanks @StormingNorman - it’s a patient facing role in a hospital so basically he has to bench and crouch and squat and sometimes lie on the floor to be able to do it. There’s really no way around it that has been identified - a “reasonable” adjustment, would be to apply what is said in the person spec and only ask him to do that stuff “occasionally”.

Could he employ a PA through Access to Work for the physical parts of the job?