Is this disability discrimination or discrimination against others?

[Workkguilt]

I have severe OCD and anxiety. Have tried every medication the GP can prescribe and have gone through NHS funded intense CBT. I am now having private therapy and awaiting an assessment with an NHS psychiatrist.

I work for a large organisation, started just under 2 years ago. From the beginning, they have known about my two conditions (which i consider a disability, if that makes a difference). I have only ever had about a week off for being unwell with covid.

I have managed to do my job well since starting, but over the past month, due to stress/pressure at work and in my home life, my symptoms of OCD (which then trigger my anxiety) have worsened and I am in a state of not being able to do my job completely - I struggle with my hours as I am up early hours of the morning as a result of my disabilities and then have a very physically demanding job to do, as well as be responsible for checking everything is in order and locking up at the end of the day. Everyone else in my place of work, and of the same level as me, have an earlier ‘shift’ pattern (its not a shift, they are fixed hours in the day) - i started on this shift pattern too, but as per my contract I was moved to this later shift pattern. Everyone else has an old contract which doesn’t include the later hours. Everyone else was offered my job, but everyone declined it. So I know nobody wants to do what I do.

I spoke to my GP who suggested taking time off work. I explained I would prefer to work, but that I would benefit from a change to the working pattern/duties, as these exacerbated my symptoms. She understood and offered me a fit note with these suggestions. Has also offered to sign me off, if this fit note falls on deaf ears.

I know my employer doesn’t have to meet these suggestions. I have been told by my employer to pull mself together, and another manager (same level) has said they would try to help but that he can’t be seen as disadvantaging other employees (as the responsibilities would be given to them) just to accommodate me. Fair enough.

But by not helping me to figure out a solution, leaving me as I am, is that not discriminatory against my disabilities? Is it not considered a reasonable adjustment?

I am willing to work, but cannot work at full capacity without causing extreme emotional and physical symptoms. I would hope that this isn’t a long term thing, and things will hopefully improve.

My suggestions have been: start earlier (as I am often awake 6-7 hours before my current shift starts). This doesn’t affect anyone else’s work or business demand.

Share / give the end of day locking up responsibilities to other employees. The problem with this, someone would need to stay later to do this (everyone else leaves hours earlier as they are on an earlier shift). OCD rituals, especially with things like ‘double checking’ can be so exhausting when I am solely responsible for it.

I’m being told by other colleagues that ‘everyone has anxiety’ ‘i have anxiety and i’m fine’, and making me feel like i’m crazy and being dramatic. I wish others understood how OCD actually affects people - its not as simple as people are lead to believe.

I feel so deflated and unwell from it but I simply can’t afford to not work.

Is there any leg to stand on? I worry about being dismissed as i’ve read that being employed less than 2 years offers little protection.

Thanks for reading

Failure to make reasonable adjustments is unlawful discrimination. Employers also have a general duty of care.

It sounds like management have, at best, a limited understanding of their legal duties.

I’m being told by other colleagues that ‘everyone has anxiety’ ‘i have anxiety and i’m fine’

These people are ignorant and these comments are garbage.

Have you asked your employer to refer you to occupational health?

@swanling thanks for your reply.

I haven’t mentioned Occupational Health yet (this has all happened within the last week). I wasn’t sure whether I need to exhaust all my options in terms of fit note and sick note, before involving OH.

"have been told by my employer to pull mself together, and another manager (same level) has said they would try to help but that he can’t be seen as disadvantaging other employees (as the responsibilities would be given to them) just to
accommodate me"

I don't usually suggest this but in your set of circumstances I would get signed off sick by GP. Your issue is that your colleagues and managers see you as coping, but they're not seeing the huge toll this is taking on your health.
Once you're off I'd ask for a referral to Occupational health (you may be able to self refer). Take evidence of your condition to the appointment, all the meds and therapies you've tried, explain how your long term condition affects you in and out of work and what will help you to return to work. Basically you want their backing for a shift change. This is not an uncommon scenario as there's lots of conditions where a back shift or night shift is not advisable.
You are entitled to reasonable adjustments and yes that cannot disadvantage everyone else, but it doesn't sound like your employer is even trying to address this as you are seen to be coping.

Good luck

@Workkguilt yes get your GP to provide a fit note stating what working hours you can’t do and what you can do.

Send fit note to manager and copy to HR request an OH referral to confirm you meet the criteria under the Equality Act and changing your working hours is a reasonable adjustment. Suggest that the late shift/locking up is covered by the other staff on a rota basis. Point out that if there is a team of x each team member only has to do 1 in x lates. This is the fairest way to do it.

It’s hard to get your thoughts in order when your head is all over the place so thanks all for your suggestions!

Hi, sorry you are having such a hard time. The ignorant comments from your colleagues are not acceptable, but there are a few clarifications that would be needed here.

You say you consider yourself disabled: does your GP? For the purposes of employment law you wouldn’t be able to self diagnose a disability.

In terms of whether adjustments are reasonable or not depends on the role. They have to be reasonable for employee and employer. (So for example, it generally wouldn’t be a reasonable adjustment for a teacher to have a work pattern which went outside the school day; or for a company to make an adjustment which would impact on their ability to run the business).

It may not be possible for them to force staff to work outwith their contracted hours to accommodate the adjustment. It might not be reasonable for them to change the conditions of employment that other people’s jobs were offered and accepted.

hopefully they will be able to find a way to support you - but remember that if you are too unwell to work and they are unable to make adjustments to allow it you can and should go off sick until you are able to recommence.

Good luck.

I don't disagree with anything anyone has said here, but I would add a caution - from what you say it would require a contractual change for other staff to do the later hours / locking up that you currently do. If that is the case, then it is very likely that forcing them into contractual changes is not a reasonable adjustment, and may not even be possible due to collective agreements or similar (you said it is a large organisation, so these may exist). I appreciate that you are struggling with these hours, but they may have equally compelling reasons for not being able to work later shifts; and even if they don't, enforcing a change on one or more people is a legally dubious argument if the only justification is that the person responsible for that duty isn't able / willing to perform them, disability or not. The problem with "reasonable adjustments" is that the adjustments are not always reasonable in the circumstances.

I do think that your management and colleagues sound like they have little comprehension of the situation, but that said, just because they don't get it doesn't mean that they are being unreasonable at the core of this issue - they have contractual hours and don't wish to change them. It may sound very reasonable to everyone here having the lates shared out - but they aren't the ones being forced into changing their hours/contracts against their will (whatever the good reason for that) to accommodate someone who wants to change their own contractual hours. If they were, I think you'd find they would be less empathic!

Please be aware that contrary to the impression often given on these threads, you may be entitled to reasonable adjustments, but that doesn't mean that the employer is required to give you the adjustments that you want. They could, equally, say that if you are not capable of fulfilling your contractual obligations, then you cannot do the job.

You say you consider yourself disabled: does your GP? For the purposes of employment law you wouldn’t be able to self diagnose a disability.

It doesn't matter what the GP thinks either. Their opinion is equally irrelevant to employment law. In the event that an employer and employee do not agree on disability, only an employment tribunal can rule definitively that someone is disabled. Not even being in receipt of disability benefits would speak to this matter - if someone does have benefits such as PIP then they would have a strong argument for being considered to have a disability, but lots of people with disabilities do not have any disability benefits.

I'd definitely ask for an occupational health referral. Your GP can make recommendations but Occ Health are the specialists in work and health.

They can state that your condition constitutes a disability ( if they agree that it does - and it does sound like it). And they can suggest reasonable adjustments.

That will carry more weight I think.

The problem is if you're the only one contracted to close up. Im Not sure if it would be a reasonable adjustment from their side if it leaves them
without someone to lock up.

I appreciate everyone’s comments. I actually asked my GP if this would be considered a disability, to which they said yes it would. I don’t claim any disability benefits, its not something I have really thought about as I’ve heard how hard it can be to get disability benefits.

There are a couple of others who do a late shift in the same office, but not as part of my department if that makes sense?

I agree it wouldn’t be reasonable to expect others to change their pattern to suit me.

I’ve also realised (re-reading my contract) that I’m entitled to 12 months full pay sick leave. So actually I may consider this route for now. It’s not what I’d want and i’m sure they may realise the effects once I’m off.