Possible discrimination?

[katyyhan]

Hey everyone,

I currently work as a private residential carer for a young lad with severe cerebral palsy that needs aspect with every aspect of his life. His care is on a 2 to 1 basis so there is usually a 2 people with him during the day but my working hours include one overnight shift which I work alone, but his mother is next door in the case of emergencies. The young lad doesn't wake through the night and if he does there is a hoist so I would never have to lift him. I'm currently 18 week pregnant, I feel fine and I've had no sickness at all. I have been very fortunate and feel very normal and capable in my job. My agency have issued a risk assessment insisting that I drop my overnight shift, despite me insisting that there is no risk involved. People work in care roles up until they are 9 months pregnant, using hoist systems and providing excellent levels of care.. but my agency won't even honor my hours up until my qualifying week?

As previously mentioned, I feel fine. there is no extra risk at night, in fact it is the easiest time of day. They have offered me alternatives; I could instead work on Sundays but I have other commitments on sundays for the following few weeks so will lose pay.. or they said I can change my 8 hour days to 12 which I think would be a lot more exhausting. I'm an agency worker so I guess that means I'm on a 0 hour contract but I have worked the same days for 3 years, can they just change my life with the drop of my hat just because I'm pregnant?

I've refused the changes and they've just said tough basically. This will cost me £90 per week so is causing me a great deal of stress but they won't listen to any of my reasoning.

Hope you can help, currently writing because I can't sleep with worry. Tia x

Who did your risk assessment and have they shown it to you?

I would have thought an employer undertaking a pregnancy risk assessment would be considered a good thing rather than a sign of discrimination, and they have offered alternatives. I think you need to consider those alternatives.

I agree

Are you trained to assess risk? If you are request to see the assessment and use your professional expertise to refute it. Otherwise, consider the alternatives they have offered.

How is it discrimination?

The risk is not yours alone though. The risk is also theirs. If they are not willing to take the risk, then what you think about the matter is really irrelevant.

In order to comply with the law, they must offer you alternative working arrangements on the same terms and conditions, which it appears they have done. In refusing those you are choosing to lose £90 a week.

Sorry, but I don't think you have a leg to stand on, and I can't see any discrimination here. Given how poor some employers are, I don't think you have much of an argument saying that other employers allow this sort of work up to 9 months.

Could you negotiate a short delay in the move of shifts to Sunday if your commitments are only for the next few weeks?

So are they allowed to just change your hours with immediate effect after 3 years of the same hours? I have got other commitments besides this role?

The night shift is just sleeping. The person I support does not wake through the night so like i say this is the easiest part of my entire job. Alternatively I will have to do Sundays which i cant do for a few weeks or do long days. I could do I live a while away so 12 hour days would then become 14 hour days which I don't think I could deal with energy wise.

3 weeks ago there was staff shortages due to illness and I was on my own for 24 hours which was too much, so I notified them that I can no longer do 24 hours alone which triggered this whole process. At no point did I say I couldn't even do 1 hour alone. I feel like I made a noise and am now being punished for it ngl.
The points on the risk assessment are heavily exaggerated and some are even completely untrue. Do I have no right to dispute this at all? The agency haven't visited the client since he moved house and do not know anything about his equipment or set up. His family ensure that he is better equipped than most high end care homes!

They are currently overstaffed due to training up my replacement who has been promised my shift, AFTER I relinquish it, which I was planning on doing on my 25th week.

Hey, thank you for your reply,

if I don't comply with their alternative which is working Sundays with immediate effect then my pay is being cut by £90 per week. I can't work the next few Sundays because I have weddings and other commitments so it will interfere with my statutory maternity pay amount as I am within my qualifying period. For the 8 weeks up until the 6th of October I really didn't want my pay to change. Statutory sick pay is not much as it is and I am absolutely fine to work.

From what I understand, a risk assessment is supposed to be more of a fluid document that can be kept under review. What I have received notice of is a generalised assessment that hasn't taken the individual case into consideration, and left no room for changes as my pregnancy progresses. It's just I was doing a job, and now I'm not. Black and white. No room for discussion. No notice. I'm only 18 weeks, I'm not made of glass.

It's really rocked me because I've had the same days of work for 3 years, I'm even team leader! I'm still legally entitled to work nights as long as there isn't a risk, and there isn't. Thousands of pregnant people use a hoist system every day, and this one is a lot easier than most as it is a ceiling hoist...

I would disagree with you. The OP's wages are not being cut. She is choosing to refuse the alternatives being offered, and the employer has assessed that being on her own in a situation where she may have to carry out duties which could put her and her child at risk is unacceptable. Her personal preference may be to ahve a shift that consists of sleeping, but just because that has always been the case doesn't mean that it always will be. It only takes one night when she needs to use the hoist and something goes wrong. No amount of seeing the risk assessment will give her the right to refuse to accept it.

In the end, the only arbiter of this would be an employment tribunal. The employers assessed risk will carry great weight with a tribunal - they won't care whether the OP agrees with it or not. They will operate on the basis of the law, which lays down that the employer must assess the risk, and where a risk is identified, they must mitigate the risk, remove the risk, or offer an alternative on the same pay and conditions; and if none of that is possible they must suspend on full pay. The employer has complied with the law.

She’s an agency worker, probably not likely to be considered an employee.

That’s going to screw her even further.

Your employer can't change your hours and expect you to be ok.

ACAS - Changing your work duties for your pregnancy
If your job has a health and safety risk to you and your unborn baby, your employer or 'hiring organisation' (the organisation an agency has placed you with) must remove the risk for you.
This should include temporarily changing your job if something more suitable is available.
For example, if your job involves heavy lifting your employer or hiring organisation might be able to remove that task, or provide someone to help so you do not have to lift heavy objects.
The terms of your contract or assignment should not change, for example your pay needs to be the same.

www.acas.org.uk/your-maternity-leave-pay-and-other-rights/health-at-work-during-pregnancy

THE OP IS AN AGENCY WORKER. THE AGENCY CAN OFFER WHATEVER HOURS THEY LIKE (OR NOT).

Doesn’t matter. They are a worker, not an employee and that matters.

Try pregnant then screwed for advice and ACAS.

You could ask for an occupational health review I think.

https://maternityaction.org.uk/advice/maternity-and-parental-rights-for-agency-workers/#:~:text=Can%20the%20agency%20refuse%20to,you%20should%20seek%20legal%20advice.

No. She has some equal rights as an employee.