Reasonable adjustments

[user56889866]

Hi I have two staff who both require reasonable adjustments. Staff member A who was diagnosed and treated for cancer 5 years ago and staff member B who has been off sick for 2 months with mental health issues due to work and is returning next week.
So we work in a small pharmacy and B works on the counter serving customers and has said due to anxiety she can't cope with customers.
Staff member A has worked in the back doing a job that involves sitting as she finds it too much to stand at the counter all day (no option to sit). This was agreed with a previous manager although there is no written agreement just verbal.
Now staff member B wants to do a job in the back however there is only enough work for one of them.
What should I do?

are you a chain?

I'm not an expert, but I think 'reasonable adjustments' need to be just that. Reasonable.

I don't think it's reasonable if your job entails serving customers to insist that you can't deal with customers and need to lurk in the back room. There isn't any work for B in the back room, from what you've said.

Hopefully someone with HR/legal knowledge will be along.

@escapethemaze no small independent

member of federation of small business?

any HR support outsourced?

Do you outsource HR?

I would think what person B is asking for would not be classed as a reasonable adjustment. Asking for no customer contact when your actual job is serving customers, is not a reasonable adjustment.

@BornIn78 no HR

She has said that customers been rude to her causes her to get stressed and anxious. She is returning on a phased return which has been advised by her GP.

How long have A and B been in employment? Is this in England?

@CornishPorsche
Scotland

A has been 15 years
B has been 18 months

What is Bs job title? If it's about customer service then I don't think it's reasonable to ask for no customer service work.

@flosset they both have the same job title pharmacy assistant

Not a lawyer. Was A's job same as B before the reasonable adjustment of working in the back, seated? If so, you have set a precedent that it's a reasonable adjustment, but your defence could be that there is only sufficient work for one person, so it's not currently reasonable to adjust. If A always worked in the back you're on safer ground with B.

That said, B has under two years service. If you cannot reasonably adjust, and B cannot work, you can follow an HR process that could lead to termination of their contract on the basis of them being unable to fulfill the requirements of the role. That's pretty nuclear as options go.

Can B try shorter hours on a phased return, with some support in how to deal with customers? They did take a customer facing job, after all.

If A can't stand all day what about A going to service customers for half an hour a couple of times a day and swap with B to give her a break. Sounds like B is taking the biscuit but it'll be straight to a tribunal if you don't do anything. Nightmare

Reasonable adjustments should be regularly reviewed, eg every 6mo, and put in writing.

permanent moves to back office function don’t sound like reasonable for either of them.

Honestly - pay to get some proper HR or legal advice on this.

You have 2 employees with protected characteristics asking for reasonable adjustments that you are unsure that you can meet. This is an absolute minefield.

There are lots of HR consultants out there you could pay to get ad hoc advice on this or have on a retainer for ongoing support.

A few hundred pounds now could save you thousands if this goes wrong.

If you can't afford that then remember ACAS provides advice to employers as well as employees.

I would also encourage you to get occupational health reports on both of them as both are asking for these adjustments on health grounds.

So one employee had cancer 5 years ago? did this affect their mobility for life? because after 5 years if they have recovered I don't see why they should still be working at the back only. Have they been assessed by occupational health?

The fair thing would be for both employees to do the customer service at the front for half their shift and half their shift at the back.

Also can't you look at providing a chair that can be used when at the front to seat when possible?

If you refuse any adjustment to the second employee while the first is having everything they want after so many years you might find yourself in front of an employment tribunal...

You only have to do what's reasonable. It sounds like you can't accommodate both of them getting what they want so they need to compromise or leave.

You shouldn't be posting about these people's medical circumstances online. Anybody involved in this situation will be able to recognise them from the details you've published.

So they have the same job but B gets all the crappy tasks and A gets the cushy role?

Having the same job TITLE is not the same as having the same job. In a previous career we all had the same job title (Project Analyst), the jobs were very different.

Taken from the ACAS website:

What 'reasonable' means

What is reasonable depends on each situation. The employer must consider carefully if the adjustment:

• will remove or reduce the disadvantage – the employer should talk with the person and not make assumptions
• is practical to make
• is affordable
• could harm the health and safety of others

The employer does not have to change the basic nature of the job. For example, if someone in a call centre asks for a job that does not involve taking calls, this might not be reasonable if there is no other job to give them.

An employer does not have to make adjustments that are unreasonable. However, they should still find other ways to support the disabled person. This could include making other adjustments that are reasonable.

What reasonable adjustments are - Reasonable adjustments at work - Acas

I expect it would be worth getting professional advice on this.

I think you should take legal advice if you are indeed the employer in this scenario.
My opinion for what it’s worth is that being an assistant in a pharmacy requires both back room and front of house work. Someone who is 5 years post cancer treatment should be able to stand and serve. Someone wishing to return to shop work after any kind of illness (mental health included) should be prepared to work with customers.
If you feel like being kind you could allow them to take turns working in the back office.

You clearly don't know about the long term effects of cancer treatment or the legal status of cancer survivors.

It does unfortunately happen where you can accommodate one and not both. Both employees here are either disabled or likely to be.

Employee A - her adjustments are in place. She has a lengthy period of service. I don’t think you can reasonably ask to change that, unless she is genuinely agreeable to a seated arrangement on the counter of some sort. If that isn’t possible, leave her be (but I do think you should explore the possibility to avoid prejudice to employee B).

Employee B - you need a medical or OH report on her condition to firstly assess whether she’s likely to be disabled, and secondly to assess whether there are any adjustments which are reasonable. Alternative duties MIGHT be reasonable (which is why I’d probe with A in a non forceful way whether she could do a counter job whilst seated).

If the OH report says she isn’t disabled, then no duty to make adjustments arises, so she’s either capable of doing the job or she isn’t.

If A can’t change her duties, and B IS disabled and can’t customer face, and there aren’t any adjustments that can be made for her, you need medical evidence AND documentary proof that you have attempted to find suitable adjustments with her to try and avoid liability. Explore as many alternatives as possible - offer breaks spread out across the day, reduced working hours, or alternate hours to less busy periods for example - and document all discussions and why the RAs are found not to be suitable.

But a lawyer/HR advisor would be your best solution I think!

Disabled, senior manager and active trade union rep...

I'd agree that if you have the ability, you should get advice, but small businesses don't always...

If that isn't possible...

A has a pre-existing adjustment in place and you have no grounds to change that. B has a job that they state they are incapable of doing. There is no other work for them available. Document everything, terminate B's employment having done a full assessment of whether there is alternative work for them or not. Maybe offer double notice pay IF they sign an agreement that they won't bring a claim to tribunal - worth getting that tied down by a solicitor. The truth is that if this went to a tribunal, if you are fair and reasonable, you'll win. Hands down. But it'll cost a fortune to go to a tribunal. So make an offer they won't refuse to go away.

Lots of great advice on here, but just wanted to add that you should also get advice on getting A's reasonable adjustment in writing and attached to her employee file, with a copy given to her. Ideally the document should be specific, so what's the issue, why is there an issue (long term nerve damage etc) how long they CAN stand for, what other adjustments were tried (a seat provided at the counter etc) and why those didn't work, and any other things she requires in relation to this - extra breaks etc.
This will help her, and her next manager enormously if you ever move on. It's not a legally binding document, and doesn't 'entitle' her to anything legally, but its a solid backup to her legal right to adjustment and answers some of the many questions that might come up in future from managers, head office etc.