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

Ignore all of these replies and speak to pregnant then screwed

I am not getting dragged into this part of the discussion because whilst I spotted that she may or may not be classed as an employee, it is irrelevant. However, you may also be misinterpreting what an agency worker is in this context, given that the OP works in social care in a private home.

You are failing to recognise that if the employer judges a part of the role to be a risk, and they cannot mitigate that risk then they are entitled to make an offer of a reasonable alternative, and their contention is that they have done so and the OP has refused it. Whether or not they are correct in their contention can only be determined by an employment tribunal, and the only way that can happen is if the OP makes a claim. When they make that claim, their employment is, to all intents and purposes, over. Discrimination claims are never worth what people think they will be. If that is the way the OP wishes to go then they should at least be aware of the facts, not wishful thinking or depending on the advice they like to make decisions.

Apologies, I probably should have specified. I am an employee with an employment contract which doesn't specify my hours but does say I require some notice of changes. I am paid via an agency because the government insist that individuals with larger staff budgets go through an agency to avoid embezzlement.
I get maternity leave and I am entitled to SMP.
I received legal advice today that has confirmed that my rights protect me from this treatment and advised me on a course of action. If anyone in the future reads this thread and is in a similar position then your employer is not allowed to withdraw your shift and demand an alternative that suits them but not you. This is a two way street and a risk assessment should be a document that is subject to review as your pregnancy progresses, not as black and white as mine has been. You are allowed to dispute this.
Thanks to some for the advice, I wish it hadn't been removed so I could read it!

I'm with @Banditqueen12. Whether OP is an employee is irrelevant. What matters is whether the risk assessment is reasonable and, if so, if the alternative offered is reasonable. If they are, OP does not have a case. If OP wants to know, she needs to see a solicitor who specialises in employment law.

I still have doubts about the advice you have recieved, because that is certainly not what the legislation says; and I think the employer has a strong argument should it come to law.

But you should be advised that the posts that were removed were removed because of an extremely misogynistic and nasty comment about women in general which I will not repeat, and that might then inform how reliable their information was (or, indeed, the motivation for posting on a site predominantly made up of women).

Find me the legislation that states that you just have to accept a risk assessment and do whatever alternatives they offer you, despite an unreasonable risk assessment. I have obtained legal advice from Pregnant and Screwed, as well as Maternity Action.

The agency did not consult me, which is an integral part of the process:

• "talk to them and see if there are any conditions or circumstances with their pregnancy that could affect their work"
• "discuss and concerns they have about how their work could affect their pregnancy"

https://www.hse.gov.uk/mothers/employer/risk-assessment.htm Nor have they visited the site or reviewed the equipment available. They have not conducted an INDIVIDUAL risk assessment which has room for review, they have regurgitated a generic one with immediate effect and will not take my arguments into consideration or even justify their claims or responses.

They are adding another working day to my rota, making my days at that job 4/7 instead of 3/7, in order to make up my wages from losing the night, and to room for the staff that I have trained. They cannot just take my job, wages and time without justification or notice.

Just going to leave this here:
"There is no reason why a pregnant woman or new mother cannot continue working and developing their career provided that working conditions are acceptable. An employer must not subject a woman to disadvantage or dismiss her for health and safety reasons relating to pregnancy." https://maternityactionemployers.org.uk/11-health-and-safety-during-pregnancy-and-after-the-birth/

I was taken off my night shifts when about 4 months pregnant!

It more to do with fact that if I had to leave while I’m on shift? Who would take over and me not feeling like I could leave if something happened!!

although I do work in a very different field! But maybe it’s the nights per se rather than anything else?

There is no legislation that specifically says you have to accept a risk assessment, but nor is there any that specifically says you can reject one. The question is whether the risk assessment is reasonable.

There is no legislation that says you have to accept whatever alternative they offer. However, if they offer a reasonable alternative and you reject it, there is no legislation that requires them to come up with another alternative. The question is whether the alternative offered was reasonable.

Legislation does not lay down hard and fast rules for every situation. The courts interpret how it applies to a specific situation. At the end of the day, it would be for an employment tribunal to decide if your employer's risk assessment was reasonable, and also if the alternative they have offered was reasonable.

Your employer may be wrong, but it is not cut and dried. As per my previous post, if you want to know for sure you need to consult a lawyer who specialises in education.

I agree with @prh47bridge

I have outlined what the law says. It does not say much. When the law is silent, it is dangerous. Be clear - the law, and employment tribunals interpretation of the law, is seldom on the employees side. If that is what you are relying on, you are dicing with the devil. It says neither thing - but I will bet on which side "reasonable" will come down on because I have direct experience of what it will come down on. It is seldom the employees.

One final input from me, because you clearly decided what advice you expeted and wanted from the beginning, and will only hear what you want to hear. As with ACAS, you may have taken legal advice. I have given you legal advice. So has @prh47bridge . It happens to legal advice which is somewhat at variance from other advice. There is a reason for that. Legal advice and legal opinion are very different things. I will bet my next pay check that none of your advice will give you any kind of guarantee that you have a case that you can win. Which is what we have already told you - when you go to law, the outcome is uncertain and you should do everything you can to avoid that. In fact, the law expects you to do eberything you can to avoid it too. Had you taken legal opinion, then no responsible lawyer could or would tell you what you appear to have been told - that you are right and the employer is wrong.

Perhaps it doesn't matter to you, but you are betting your job on this. If you had union legal representation or insurance then I would assume you would have gone there rather than here. So if betting your job is acceptable then have at it. But be very clear - you are taking a gamble, which you might bluff the employer into backing off. Or not. And if it is not, in law, it's a gamble and the odds are not good. They seldom are.