Reasonable adjustment for disability?

[ChiefBabySniffer]

Hey all. Posting on behalf of my DH.

He has been working for a company for 5 years as a driver. He has needed minor repairing knee surgery for which he took holiday for to recover from, twice. They are fully aware that he has arthritis. They have a fleet of 150 vehicles, but five of these vehicles are a certain model and this set model causes him terrible knee pain within an hour of starting a driving shift. He has begged them not to put him in these vehicles and will do any other job in any other vehicle.

They have done this happily but every year they insist on putting him back in it. Today is his first day and again, his knee has swollen up like a balloon and he is in agony. He still has 6 hours to go.

He has just called his office and been told he must use his annual leave for the next two weeks until his normal job is back on . But I think they should make a reasonable adjustment due to his arthritis? For clarity, 90% of the driving staff are at home on furlough as it's a term time driving business and trips in holidays etc aren't currently running so they could have got somebody else to do this.

What impact does his arthritis have on his ability to carry out normal day to day activities? Is it just if he's driving a particular type of vehicle that it becomes problematic?

He can carry out his daily duties fine usually, and is normally in a vehicle that is for example- a Ford. But another vehicle, which makes up around 5% of the fleet , a Vauxhall, has a very different seating position that really puts pressure on his knee and makes it incredibly painful to drive. He can't take strong painkillers as he is driving. So he asks them not to put him in this one vehicle, but every year they try to force him back into it knowing it kills his joints . So note he has been told tough titty, you drive the Vauxhall or you take holidays for two weeks until you can go back to the Ford.

So they KNOW it's a problem. And there are plenty of other drivers sat at home on furlough that could have done this job, in this vehicle.

As your dh could well be covered by the DDA then his employers should be making adjustments to accommodate this.

He probably needs an Occupational Health Assessment to back this up though.

Presume he had arthritis when he started? Has he talked to his manager about making reasonable adjustments for his medical condition?

So I ask his boss for an occupational health assessment? They knew he had arthritis when they took him on. He was 50 and needed surgery within 6 months of starting. He has told them repeatedly that he suffers with a huge about of pain driving this vehicle. They listen for 6-12 months then tell him he's got to get on with it again.

I've just messaged his Union rep. He is cashing him tomorrow to discuss it. The queen place is incredibly unprofessional. If you are sick or have a family emergency then they punish you by withholding work even though contracted to 40 hours weekly. They never met their own promise of 40 hours a week work, so not meet the wage, in the holidays etc so we struggle financially. Yet he has never complained about any of the treatment apart from driving this one vehicle.

Thank you very much for the help.

You need to go through a proper process to have this assessed as a disability, there are special rules around fluctuating conditions such as arthritis so it isn’t a given. I don’t think him having time off for surgery would mean the employer has, or should have, taken this to assume he has a disability that requires reasonable adjustments.

As you have already contacted a union rep, then you might as well see what they say with regards to occupational health, but that does sound like the way to go. I don’t think it will help the short term issue though, can you afford unpaid leave for a week or two until it is sorted?

I didn’t understand the issue about reducing hours when somebody is sick or has a family emergency, isn’t that a nice thing to do? I in necessarily relevant, I am just trying to understand your expectations in difficult scenarios.

Also why do they decide, once a year, to change his van?

@Aprilx he needs a partial knee replacement and walks with a visible limp. They most certainly know it's an ongoing condition at best and at worst they do not care.

Why do they make him drive this van? It's just the culture of the work place. He is pretty assertive when it comes to his rights and fairness. Here is the drivers rep etc and often advocates for other drivers that feel they are being treated unfairly. So it's almost like they are doing it to punish him.

As I mentioned previously, if you have a day off for a family emergency or a tummy bug etc then they punish you by withholding work even though you are available. They do not give you extra (unpaid) time off from the goodness of their heart, they punish you by withholding shifts to deter people from calling in sick. My husband is home for the next two weeks now and has been forced to take this as holiday so to avoid driving the vehicle that causes him pain. He can barely walk today.

I have a huge amount of paper work that I have been collecting from this employer since he started. I have no idea how he has put up with it. They have tried to discipline him so many times for trivial things that aren't even a disciplinary offence according to his very poorly written contract. They wanted to give him a warning for the time off for the surgery that THEY approved because he got an infection a week later that delayed him returning by four days. That combined with an appointment to his heart Dr was enough for them to feel they were being taken advantage of. They write to him telling him his health and behaviour was unacceptable and he had to go in for an interview for gross misconduct. So I got his Union involved and the day of the meeting they shit themselves and tried to say it was just an informal chat ( with the three owners and a manager sat at a long desk facing him). The Union rep asked when they had conducted his back to work interview to assess any support he may need, as per their own contract rules, and they had to agree they never did it with anybody.

It's a very very poor organisation. He has 6 break downs last week alone. Then gets into trouble when he is late desire it being their poor maintenance that causes the break downs.

His employer sounds like arseholes. If he is speaking up assertively (which is a good thing to do), and then they punishing him for it it could be classed as bullying

Any, it's not just him that is punished by withholding work for a days absence, it's everybody. Tbh I'm amazed that he has lasted 5 years there. They aren't given PPE for cleaning or corona, no screens between them and the service users as it's private rental so not the same rules as public service vehicles. I've begged him to move but he loves his job, loves his usual vehicle and has made some really good friends there. But I am 100% keeping the paper trail so I can build a case for if they ramp it up.

If what you say about him usually being able to carry out his day to day activities with little impact is true, then he wouldn’t be classed as legally disabled and so no duty to make reasonable adjustments arises. There’s no legal duty to adjust one aspect of a role for a non disabled person so if he isn’t disabled, he’s just not able to do the job!

However I suspect it probably does impact him more than he lets on, and that he probably is disabled - surely a knee replacement and arthritis would impact him in other ways - difficulty driving generally, heavy lifting issues, tiredness on manual exertion etc?

Just framing it this way so he considers carefully his position - if he said to his employer for example that his knee didn’t affect him at all, then his employer could legally argue they had no way of knowing he was disabled if even your DH wasn’t aware and told them (in effect) that he isn’t! The impact of that is any claim he could have had would potentially go out of the window.

Realistically I think he needs an OH report dealing with the issue of whether he’s disabled and recommending adjustments. Asking to use a different vehicle across a fleet isn’t likely to be unreasonable at all!

And gross misconduct for a planned operation is totally inappropriate.

I’d suggest speaking to the union about the OH point and the best way to persuade the employer to facilitate that - or he could request it himself, but they don’t sound like the kind of employer that would voluntarily help unless pushed!

@MrsPinkCock

I'm risking outing myself here but he is a bus driver, specifically on the school runs for colleges, swimming runs etc. His normal every day vehicle is fully automatic and so the strain is massively eased on his knees but of course yes, he does struggle with pain. But the fact that he has an automatic vehicle really really helps. The vehicle he has been placed in for this two weeks is not automatic and has a Different seating aspect that means his heel is not against the floor and so his knee joint has to take all of the pressure . He has had this problem with them every year and they have a fleet of 150 vehicles and a similar amount of drivers.... a vast majority of the drivers are at home on furlough so it would have been very easy to get another driver to do this specific service bus. He will drive any other vehicle apart this one make. He doesn't do manual lifting , and couldn't anyway as he had a heart issue that they also know about.

The Union didn't call back today but he is now off after deciding to take all of his holidays this week.