Equality act 2010 and my rights

[User129867588]

Just want to ask a qq. Back in 2020 I requested an occupational health assessment due to issues I was having with equipment NOT provided for me to wfh during covid. Now in 2023 my problems with my back and now shoulder are back and I have requested a reduction to my hours. I’m having issues with my employer and they want me to agree some unsociable hours which I don’t currently work and would mean my work life balance would suffer but more importantly I feel better and more comfortable with my back working morning and early afternoon. I feel like they are being unreasonable and am getting more stressed with this process. I am being proactive and making adjustments before I end up getting signed off work due to pain.

I'm wondering if I should refer them to my previous report which has this paragraph:

‘In my opinion it is likely that the colleague’s back pain symptoms would be considered a disability as described in the Equality Act 2010. The conditions are long standing and affect day to day living if assessed without the benefit of treatment. This is, however, a legal rather than a medical decision.’

it has been 3 weeks since I request that change and I’m not getting anywhere.

thanks in advance

The Equality Act confers very few "rights". And that statement is a typical OH "hedging our bets either way" comment - it has no meaning at all.

I'm struggling to understand what your disability is, but it seems that you are actually talking about changing your contractual hours. Have they responded at all, or not? I'm unsure where these unsocial hours and work life balance arguments come in. And three weeks really isn't that long.

Well we could all argue for work/life balance!

This is from the equality and human rights website.
See the use of the word ‘could’. There is no prescriptive list that I am aware of that states the employer has to agree to reduction of hours or to giving the employee the exact hours they are requesting.

@Highworth
You are correct. The requirement in law, IF there is a disability, is for "reasonable adjustments" - but in the first instance the decision as to what is reasonable lies with the employer not the employee. Reasonable can mean almost anything, and to be fair it needs to - because no employment, no employer, no role, no person and no disability for any single pattern. Disability is slightly better defined, in that the condition needs to have lasted, or be expected to last, at least 12 months; and it must have a substantial impact on day to day activities.

If there is no agreement on these matters only a tribunal can decide. In which case, relationships with the employer, win or lose, are finished.

I am not convinced that some back / shoulder pain which is only treated with ibuprofen would be convincing enough to get exactly what one wants, especially if that means getting the sweet choice of working hours whilst everyone else gets the unsocial hours. That would struggle to meet the disability threshold. I wouldn't diminish the OPS circumstances, but I think there are options to explore, and the OP hasn't given that process a chance.

Wouldn't you have more of a case in relation to health and safety regulations, rather than equality legislation? If you don't have appropriate equipment to work without pain at home then your employer should be rectifying this.
I wouldn't have thought that equality legislation would kick in for work-engendered back pain, rather than disability.

@User129867588

Only an Employment Tribunal can definitively decide if you meet the criteria for the protected characteristic of disability.

The statement by OH is standard and they are saying to your employer they would be taking a risk if they do not treat you as meeting the disability pc and to make reasonable adjustments.

When an employee makes a flexible working request this is basically a request to vary your contract. It is reasonable for an employer to consider the request but put their own contract variation on the table.

Your request is not a flexible working request it is a request for a reasonable adjustment due to a disability.

The fact that you injured your back and shoulder because your employer failed to provide correct DSE equipment is a H & S issue ie. Workplace injury.

If you are in a TU talk to them. If not I would write again stating Request for Reasonable Adjustment under EA2010.

State a timeline e.g. in 2020 following the governments requirement to work from home the delay in providing DSE led to me suffering an injury to my back and shoulder.
on (date) I was referred to OH who confirmed (statement) and advised (? ) .
on (date) the following equipment was provided…..

Since (date) the existing injury to my Back and shoulder have started to give me trouble. Following consultation with my GP I was advised to reduce my hours and work (state hours). If required I am happy to provide a fit note confirming this.

I am formally requesting a reasonable adjustment of reducing my hours to (hours). I am happy to be referred to OH to confirm this request is a direct result of my disability.

I would play heavily on failure to provide equipment caused your disability.

HTH

I think you are barking up the wrong tree. This sounds like a health and safety matter not an equality matter. Funnily enough I have started a new job myself two months ago and I am struggling with my back through not having the right chair. I am following it up through H&S, it has not even occurred to me that I should consider myself disabled. Also the idea that my chair would not impact my back if I sat on it on my preferred times of day is rather bizarre.

I think you should be following up on your equipment, not using this to cherry pick the best shifts!

@User129867588 you are correct it started out as a health and safety issue but that does not mean it is not a disability issue too.

You struggling with your back for a couple of months does not meet the legal definition of disability. The op has a lasting impairment which has impacted their life for 3 years. This potentially does meet the legal definition of disability.

In 3 years time if you are still struggling with your back and it is making it difficult to for you to do housework, go to the theatre/cinema, and you are in pain you may think very differently.

It may surprise you to know disabilities do not always impact consistently. Some may make getting going in the morning difficult, others worsen with tiredness and impact later in the day. Adjusting working hours/patterns are very common reasonable adjustment.

The op appears to be working a standard day e.g. 08:30 to 17:00 and has asked to reduce their hours to say 08:30 to 15:00 because their back worsens as the day goes on. This is a reasonable request.

The employer has indicated they want the op to completely change their hours and work say 11:30 to 18:00. That is an unreasonable request because it completely changes her working pattern and requires her to work at the time when her disability worsens.

The op is not cherry picking the best shifts she is asking to reduce her current working hours.

I would not carry on with back issues for three years! I would do something about it now, as I am doing. And I am sure OP said her issues have just returned, so she didn’t suffer for three years either. OP has been very vague about what is being asked of her re hour changes.

@Mortimercat no one should carry on for 3 years without treatment. However, there are no guarantees of a cure and it can lead to a permanent impairment. There is nothing in the OPs post to say what treatment she has or hasn’t received.

The op says OH determined it was likely to meet the criteria of disability. Neither you nor I are in a position to challenge that. Only an ET can do that.

It is not unusual for musculoskeletal issues to be ongoing and they may be degenerative. That is why I suggested a further referral to OH to confirm the re-occurrence still meets the criteria set out in the EA2010.

The op stated she asked to reduce her current hours and her employer wants her to work unsocial hours that she doesn’t currently work.

There is no issue the employer asking, but the op can refuse and ask for her current working hours to be reduced as a reasonable adjustment.

A common mistake people make is that they think they have the same medical condition but in reality there are lots of variations and they can impact very differently. Making the right reasonable adjustments is very much based on individual need not want. That is why the op and her employer need further OH advice.

There is nothing in the OPs post to say what treatment she has or hasn’t received.

But there is elsewhere.

@Quveas the op only posted once.

There are other threads. Elsewhere they say that they have recently been having some back / shoulder pain (and diagnosed with bunions) which the GP has said should be treated with ibruprofen and does not require referral for further diagnosis. If the OP disagrees with that then they need to address the concern they have with their medical practitioner - there is no diagnosed disability as of a few days ago.

@Quveas then why not post the link in your post rather than implying I had missed information on this thread.

Are you always this sensitive? I implied no such thing. I correctly stated that there was information elsewhere - elsewhere being "not here".

@Quveas not all of us troll hunt by searching for other posts. This was quite correctly posted on the work forum not AIBU.

Having now found what I think is the post you refer to, there is nowhere near enough information to state categorically that in the last 3 years the op has only had OTC pain medication for her back and shoulder problems and no other treatment.

I stand by my assertion that with an OH stating in their opinion she meets the criteria for disability I would accept that and act accordingly. Only an ET or a second OH referral stating she did not meet the criteria would change my view.

Unless you're receiving ongoing medical care and have some form of diagnosis from a medical professional you won't be disabled for the purpose of the equality act. It's not really your company's responsibility to arrange diagnosis and healthcare options, you need to have this done outside work then go to your company with recommendations you need. This just sounds a bit like you're trying use a bad back to get out of working your hours Tbh 🤷

@GP75 The op’s employer has an OH report from a medical professional that states
‘In my opinion it is likely that the colleague’s back pain symptoms would be considered a disability as described in the Equality Act 2010. The conditions are long standing and affect day to day living if assessed without the benefit of treatment. This is, however, a legal rather than a medical decision.’

Any employer receiving an OH report with that type of statement knows it means if you ignore the OPs medical condition be prepared to explain to an ET why you are better qualified than a doctor.

It never ceases to amaze me how many posters can assess another posters health from a few words better than a Doctor who has examined them.

I was not troll hunting. That is a totally unjustified smear. There is a search facility and I am allowed to use it. There was and still is no assumption on my part that the OP was a troll. If there were I would have reported it.

You really do have an issue with anyone who disagrees with you. You may have expertise. So do others. Yours is not the only opinion that is valid. Now I am not engaging any longer with you, but if you continue to make wild accusations about me breaking site rules then I will be making a report - about you.