Is this discrimination?

[user880098]

I had surgery two years ago and ever since my arm has not been as strong. I find it painful to do repetitive work.
I spoke to my manager about this when I returned and said there would be a one job in the department I would be unable to do due to the repetitiveness of it.
So another member of staff has been doing this job but has now left and no one else in the department knows how to do it and my manager keeps pushing me to do it. I keep telling her I can't do it and that someone else needs to be trained but she's not listening.

It’s not discrimination no, becayse you’re not actually doing it are you?

@Beercrispsandnuts

It’s not discrimination no, becayse you’re not actually doing it are you?

@Beercrispsandnuts no I'm not doing it. It's just the constant pressuring me to do it and making me feel useless.

Is it in your job description you should do it?

@Beercrispsandnuts

Is it in your job description you should do it?

@Beercrispsandnuts No it's not in my job description before my op I did it but since returning I haven't due to the weakness.

I don’t think it’s discrimination at this stage. It’s too early. Ultimately if your manager wants to take this further they could ask you to get medical evidence or attend an occupational health assessment and see what is recommended

@bagsforlife20

I don’t think it’s discrimination at this stage. It’s too early. Ultimately if your manager wants to take this further they could ask you to get medical evidence or attend an occupational health assessment and see what is recommended

@bagsforlife20 ok thanks thats good to know. I don't have any medical evidence that I have given to work, its not something I have seen my GP about it only bothers me when I do repetitive work and try to avoid doing the same thing for a long period of time like ironing. I'm sure I can get evidence if needed though. I think what bothers me most is that she doesn't pressure other staff members to do it just me. She doesn't ask them.

In order for it to be discrimination you would have to have a long lasting impairment which has a significant impact on your ability to conduct normal day to day activities.

Repetitive work is unlikely to be regarded as a normal day to day activity for most people and therefore the condition is unlikely to satisfy the definition of disability.

@User76745333

In order for it to be discrimination you would have to have a long lasting impairment which has a significant impact on your ability to conduct normal day to day activities.

Repetitive work is unlikely to be regarded as a normal day to day activity for most people and therefore the condition is unlikely to satisfy the definition of disability.

@User76745333 ok that’s good to know thank you. Would it make a difference if the reason for the operation was due to an illness classed as a disability?

Possibly. It depends on what the original condition was since some conditions are automatically deemed to be disabilities. The bit where you are likely to struggle though in most cases is the normal day to day activities part.

If you have a condition which is long term and which has a substantial effect on your ability to conduct a normal day to day activity such as reading, walking, writing etc and you had to do those things in your job and you were subjected to a detriment because you couldn’t do them, then that is likely to be covered.

If you have a long term condition that means you are generally ok but can no longer perform brain surgery and so you lose your job as a brain surgeon then that probably won’t satisfy the definition because performing brain surgery is not a normal day to day activity for most people.

But it is all entirely fact dependent. Every case needs to be examined separately. If your repetitive action is something that most would consider a normal day to day activity eg turning pages in a book then you may succeed, if it’s repeatedly pulling a heavy arm of a machine then you’re unlikely to.

The fact that you’ve never even seen a GP about it though will mean it’s very difficult to prove.

@User76745333

In order for it to be discrimination you would have to have a long lasting impairment which has a significant impact on your ability to conduct normal day to day activities.

Repetitive work is unlikely to be regarded as a normal day to day activity for most people and therefore the condition is unlikely to satisfy the definition of disability.

The question is not whether it is a normal day to day activity for most people. For example, solicitors do not normally lift heavy weights, but it may well be a normal activity for a warehouse operative.

A few years ago there was a case involving an employee who worked in a distribution centre. The job required him to manually lift items weighing up to 25kg. He had a back condition which prevented him from doing this and claimed this was a disability. The employment tribunal ruled against him on the basis that manually lifting and moving heavy cases is not a "normal day to day activity" for most people. However, this was overturned on appeal. The Employment Appeal Tribunal decided that "normal day to day activities" extended to warehouse work which could include lifting heavy items and therefore declared that the employee was disabled.

You would need to consult a lawyer who specialises in employment law for specific advice, but my view is that there are more than enough jobs requiring repetitive work for an inability to undertake repetitive work to be regarded as a disability. It may, however, depend on the nature of the repetitive work.

You need to have it documented that this is a task that you can not do- and have it recorded with your company occ health as a task that can't be done- currently they have accommodated you with no documentation and it needs to be offical it's a task you can't perform. If they continue then to ask you, it could be discriminatory

I think whether it is discrimination is neither here or there - ask for an occupational health referral. They can make recommendations to your employer for you.

Op. I think maybe a little confusion. In order for something to be discrimination you need to be being treated less favourably because of a personal factor Ie disability, gender, ethnicity, sexuality etc in comparison to someone who does not have that personal factor . you are not being treated less favourably in comparison to others due to any of these things.

You are simply being asked to do something that you are trained to do thay others are not. As such you need tp provide medical evidence that you have a disability that prevents you doing this and ask for a reasonable adjustment not to do it. The onus is on you now.

@Beercrispsandnuts

Op. I think maybe a little confusion. In order for something to be discrimination you need to be being treated less favourably because of a personal factor Ie disability, gender, ethnicity, sexuality etc in comparison to someone who does not have that personal factor . you are not being treated less favourably in comparison to others due to any of these things.

You are simply being asked to do something that you are trained to do thay others are not. As such you need tp provide medical evidence that you have a disability that prevents you doing this and ask for a reasonable adjustment not to do it. The onus is on you now.

The confusion is yours, I'm afraid.

When dealing with a disability, the employer is required to make reasonable adjustments to allow the employee to continue working. A failure to do so is discrimination under the Equality Act 2010.

In this case the employer is clearly aware of the OP's problems with repetitive work but wants her to do it anyway. The OP does not need to provide medical evidence unless her employer requests it. If her condition is a disability, the repeated requests for her to undertake tasks that she cannot do is likely to be discrimination. As things stand, the onus is very much on the OP's employer, not on her.

The confusion is not mine. The op has never said she’s disabled or given any evidence of such. She is not being asked anything different to what an able person capable of the task would be and she needs to give evidence of her disability and she needs to formally request reasonable adjustments.

Right now she is absolutely not being discriminated against because she’s being treated as fairly as an able bodied person as she’s never claimed to be disabled nor has she ever provided evidence of such or even formally requested reasonable adjustments

Please at least read the ops posts.

@Beercrispsandnuts

The confusion is not mine. The op has never said she’s disabled or given any evidence of such. She is not being asked anything different to what an able person capable of the task would be and she needs to give evidence of her disability and she needs to formally request reasonable adjustments.

Right now she is absolutely not being discriminated against because she’s being treated as fairly as an able bodied person as she’s never claimed to be disabled nor has she ever provided evidence of such or even formally requested reasonable adjustments

Please at least read the ops posts.

You argued that a failure to make reasonable adjustments is not discrimination. It is.

I suggest you read the OP's posts. She has informed her employer that she is unable to undertake a particular job as it causes pain due to her medical condition. She has therefore informed her employer of something that may be a disability. I am not saying definitively that it is a disability, but she has clearly asked for a reasonable adjustment, i.e. not being required to undertake that job.

She does not have to provide medical evidence unless her employer requests it.

I'm not sure what you expect a formal request for reasonable adjustments to look like but, if her condition is indeed a disability, an employment tribunal would take the view that informing her manager of her disability and its effect on her ability to carry out tasks would be enough. She doesn't have to write a letter or use a particular form of words. Indeed, she doesn't have to request reasonable adjustments at all. The onus is on the employer to make reasonable adjustments once they are aware of a disability, regardless of whether the employee has requested any adjustments. Equality Act 2010.

These are questions of law. Your posts show that you do not understand the law in this area. So yes, the confusion is entirely yours.

Just for clarity, the employee does not have to define their condition as a disability. If, for example, I inform my employer that I have cancer, I do not have to say that it is a disability. My employer is expected to know that cancer is classed as a disability under employment law. If I inform my employer that I cannot lift heavy weights due to a back condition, I don't have to say that it is a disability.

It therefore doesn't matter whether the OP classes her condition as a disability. What matters is whether it is legally a disability. My tentative view is that it probably is, but we don't know enough to be sure.

Thanks for the extra information OP. I still don’t think discrimination is an issue at this time especially if nothing further happens. It could be a budding issue though. Just write down everything that’s happened in a factual way and record if there’s any witnesses to events.

If your manager keeps asking you to do this task, you may want to explain your position one last time in an email and raise a grievance if it continues to be asked of you afterwards. Likewise if you think your manager is treating you differently as a result of you declining to do this, you may want to raise a grievance

But ultimately your manager may want to take this further themselves and consult HR to see whether you’re declining a reasonable request from management or not. Could involve occupational health etc

Best thing would be to contact your union or seek advice from acas as your position here is dependent on your condition, your role and what is being asked of you etc. Definitely contact your GP and frame your position to them in that there’s a task at work that causes you pain, is this normal for your condition, is there any treatment etc and see what they suggest