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Can my employer change my contract and not tell me, affecting my disability?

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  • Can my employer change my contract and not tell me, affecting my disability?

    Hi, I have worked as a council employee for approximately 12 years in the same job (social care). The department has two sections, one care home based and the other is community based. Not being a car driver until recently I have been based in the home section as I could not drive to visit clients homes. The jobs are the same and the same contracts of employment as far as I am aware and three other members of staff have previously passed their driving test and moved into the community (as well as working shifts in the home). Up until recently I was told that when I passed my test I too could go into the community, it was announced at meetings when I passed my test and my boss even asked me to wait till after Christmas, to give him time to draw up a new Rota, to accommodate this change. However after buying a new car and getting business insurance to cover driving at work I asked when I could start on the new Rota that had already been drawn up, my boss then told me that he had been talking to human resources and they had told him, I could not go into the combined community/home role as there where no vacancy's to fill and if there where a vacancy then they would have to offer it to someone who has lost their post in another section of the council. This is confusing because I already have a job there and the only difference is that I now drive and am able to undertake all aspects of my position now. They also mentioned that my contract had changed since the last person had passed their test and this now ties me down to working in the home only. There are three full time carers in the home that don't drive, supplemented by the community workers on a Rota basis and neither of my colleges can remember being told that our contracts had changed.

    I have took this a little further and asked the next boss up the line and he just confirmed what H.R had said.

    Please note that this is a much more important issue to me than complaining about a technicality, I really need to move into the community ASAP on health grounds.

    Three years ago I broke my knee joint very badly and due to this, being on my feet, weight bearing for six hours every day really causes me to have pain every evening. I have been told that I need a knee replacement and as they only last for 15 years and you can only have two replacements, I am too young to have one now and they will only do it when I really cannot walk on it anymore. The cartilage inside the knee joint is damaged and the more I walk on it, the sooner I will need a knee replacement. The council doctor has said that I am technically disabled. I have to take strong painkillers 24/7. My job would be a lot easier on my knee if I could do community visits as driving does not affect me anywhere near as much as constant weight bearing.

    So good people, I really need some advice, I have drafted a letter that I am going to send to human resources and wondered if anyone would check it over and feel free to make suggestions as to what to add or remove, I would really appreciate any help I get. My letter is below along with some questions I would like to ask.

    1. Can an employer change your contract without informing the employee?

    2. Is it OK for me to ask for a copy of the community employee's contracts if different?

    3. Would it be advisable for me to join a union, do they have any more authority/resources than me doing it myself?

    4. Where might be the best place to get free advice?

    ========================

    Human recourses department

    Dear sirs,
    I am writing with regard to being informed that I cannot transfer from working as a support worker in the *************** unit, to working as a support worker in the community, I have worked for the support team for twelve years since the service was created and opened.
    Due to the fact that I did not drive at that time, I was placed in ************* unit. Since then three of my colleagues have passed their driving tests and where moved out of ************* into the community. No additional posts where created for them and no vacancy's where available at that time, they simply moved over to the community. The community support workers come into *************** on a rotational basis, to staff the unit, alongside myself and two other non driving colleagues. I had been told, that when I pass my driving test, I would also be able to work in the community.
    When I passed my test in July 2012 I informed my line managers**********and *************and asked to move into the community, I was told that I could and we planned for this to start in the new year. It was announced to all the team in the last support workers meeting in January, that this was happening at the beginning of April.
    I planned for this change and bought a car, also acquiring business insurance to enable me to do this. ******** had also created a new Rota to accommodate this move. Then in mid January ********** informed me that I could no longer go into the community for two reasons, neither of which I can fully understand, I have spoken to *********, ********** and *********** about this and still do not understand why I cannot move into the community as others have done previously.
    The first reason I am being given is that I am on a different contract to the driving community support workers. I have no memory of seeing, signing or being given a new contract and was under the impression that all support workers where on the same contract. I also do not remember being told about any changes to my contract or that any changes being made would prevent me from working in the community. I would be grateful if you would provide me with a copy of my contract and any previous contracts I may have had and would appreciate it if you could highlight any changes that where made that would prevent me from moving into the community as others have, in the past. My two colleagues in ************** also do not have any memory of a new contract or our contract being changed and also do not have a copy of any new contract either.
    The second reason I am being given, is that there are no vacancy's in the community. I do not understand why there would have to be a vacancy as I am already a support worker and the number of support workers would not change. As I mentioned before, three colleagues have already moved into the community, with no problems, they where not filling any vacancies, they just moved into the community and different community support workers came into *************** on a Rota basis to accommodate this change.
    I am not applying for a new post, I am one of the longest serving members of the support team and have simply passed my driving test allowing me to partake in the full scope of my job. ********** had created a new Rota that would have accommodate my move, there would be the same number of support workers in the community and ************ as people rotate between the two.

    I just feel that I am not being treated fairly or equally to other members of the team, I would like to develop and expand my skills and experience and have at least the same opportunities as my colleagues. I feel that I am being held back and discriminated against.

    I would appreciate it if you can explain in detail what differences there are in my contract , compared to any contract that previously allowed support workers into the community once they had passed their driving test. I have contacted ******union about this matter and have been advised to explain my situation to you. I have also been told to ask for a copy of my contract and any changes made to my contract and the time frame that I should have been made aware of any changes, if any where made and a copy of the community contract if different.

    ===========

    Thank you for any help i might get.
    Tags: None

  • #2
    Re: Can my employer change my contract and not tell me, affecting my disability?

    Originally posted by weehen View Post

    2. Is it OK for me to ask for a copy of the community employee's contracts if different?

    4. Where might be the best place to get free advice?
    Sorry I can't answer more, but I'll have a stab at Number 2 and answer Number 4.

    2. No - I see no reason why you should be entitled to see anyone's contract but your own.

    4. Here - there is excellent employment advice on here, but you'll have to wait until tomorrow.

    Comment


    • #3
      Re: Can my employer change my contract and not tell me, affecting my disability?

      I think that for a start off you seem to be very confused about one thing - you say in you letter that you have been in contact with a union who have given you advice; and in your questions that you are not a member of a union and "would it be advisable to join one?". Both of these statements cannot be true. The simple fact is that it is always advisable to join a union, and yes, they have more "authority" or influence and resources to deal with issues that arise at work - but you are far too late to join a union to deal with this issue. Unions will not advise non-members; they will not support new members until they have fulfilled a period of membership; and they will not represent members on matters that have arisen before they joined the union. You may be lucky, and someone may be willing to give you a bit of support if you joined, but you won't be entitled to anything from the union in regards to this issue.

      "Contracts" are not simply the piece of paper you get given at the beginning of employment (this is actually the written statement of main particulars and contains only the main details of your contract - not all of it). They are also determined by policies, by custom and practice and all sorts of other things. You have worked for twelve years in the home based section of the service, so I am afraid that I have no hestitation in saying that that is your job. What has happened in the past with other workers, or what may have been said and promised to you is not relevant. It is absolutely and completely the decision of the employer to decide how and where to deploy employees - you have no legal right to tell them where or how you should be deployed. You are still a support worker, which is what you have always been. That has not changed. You have no legal case, therefore, to argue that the employer has done anything at all wrong.

      Quite separately from that matter is the issue of your medical condition. If your GP supports the view that varying your duties may assist in your medical condition, then you should ask for this deployment on that basis - I am astonished that you failed even to mention this point in your drafted letter. Your manager would need to refer you to occupational health, and if they agree that such an adjustment would be desireable, this would carry far more weight than any argument that you could muster over contracts. It does not guarantee that you will get what you want - but if an element of community based working could be shown to be a reasonable adjustment it is far more likely that they would consider your request on this basis.

      My advice would be to ditch your letter, which has no real prospect of doing anything but getting you a "no" - and once you have a "no" it will be much harder to then continue the argument by introducing other elements such as your medical condition. Approach this through a request for a reasonable adjustment to help you manage the knee problem. But make sure that the GP supports you in this and agrees with you, because if they do not then you may be opening a can of worms that you do not want opening. I cannot entirely comprehend how driving - unless your car is automatic / adapted - and moving about in the community where you will still be carrying out support work, puts less pressure on your knees. The risk in this approach is that if you are arguing that your job is putting your health at risk and making your condition worse, it may be that raises issues of capability and whether you should be doing such work at all.

      Comment


      • #4
        Re: Can my employer change my contract and not tell me, affecting my disability?

        I have relatives who have worked for local authorities for over 30 years and I'm afraid what you describe is symptomatic of local authorities.
        Life is a journey on which we all travel, sometimes together, but never alone.

        Comment


        • #5
          Re: Can my employer change my contract and not tell me, affecting my disability?

          Does your employer know about your condition? Do you consider yourself disabled? Do you or have you applied for DLA in order to assist you getting to work?
          As far as Union Mmebership goes - you should join but you cannot get help on this although a rep might offers support if they are not busy. My advice would be to join the Union - you have car insurance - you need work insurance

          Comment


          • #6
            Re: Can my employer change my contract and not tell me, affecting my disability?

            Originally posted by starukkiwi View Post
            As far as Union Mmebership goes - you should join but you cannot get help on this although a rep might offers support if they are not busy. My advice would be to join the Union - you have car insurance - you need work insurance
            Agreed. The risk is that people often think that tey'll join "later" because if they can't get help now, there is no rush. Then they never do. And a year later they are back on a site like this asking for advice again because there's another problem. Advice on sites like this never replaces proper representation by a union. And 8 out of 10 work problems are not, per se, legal problems - a lawyer can't help you.

            Originally posted by starukkiwi View Post
            Does your employer know about your condition? Do you consider yourself disabled? Do you or have you applied for DLA in order to assist you getting to work?
            The OP says that the Council's occupational health service has identified her condition as a disability or possible disability (this isn't clear from the post) so the employer does know. The legal test of a disability is quite different from the tests for support payments, so DLA is not relevant in terms of the query. But I must emphasise again what I said above - going down this route must be carefully considered because it is not risk free. There is no right to reasonable adjustments. There is no right to change your job to another one because you think it would be easier to manage your condition. The employer must consider requests for reasonable adjustments and they are required to make those that they consider reasonable. These will almost certainly be based on medical opinion - not on what the OP wants to happen.

            Regardless of the range of duties a support worker may be required to undertake, the OP has, for twelve years, an established contract as a site based worker. These things cut both ways - in slightly different circumstances, the employer could not have simply turned around and said "you have no driving licence, you can't do all the duties required, so you are dismissed". Nor, now, can the employee now say that they have a driving licence and that they therefore insist on no longer being site based! Arguing that their employment is adversely affecting their health and causing a detrioration of a medical condition can be dangerous; not does it give them the right to insist that the employer deploy them to other work if that work is not available. And nor does it mean that the work they wish to be deployed to, which is essentially the same work, will not have the same impact on their condition. If medical reports come back to the employer suggesting that this type of work is damaginng the OP's condition, then the employer would be foolhardy indeed to allow them to stay in this work. So it raises the question of capability. In a local authority there are usually redeployment policies in place to manage this sort of situation - but the bottom line is that if there are no suitable jobs to redeploy to (and there simply are not that many in most local authorities now - when a job falls vacant it is inevitably left that way to achieve cuts) then there is a very good chance of being dismissed on the grounds that you are not fit for work and no suitable work exists. This is not the old days when council workers were simply shifted around and absorbed and the chances of being dismissed were slight.

            Comment


            • #7
              Re: Can my employer change my contract and not tell me, affecting my disability?

              Thank you all for the advice, especially Eloise01.

              First to clear up a few points i may have been vague about. I have been receiving advice from a union rep and not the union (I used to be a member for years, but cancelled due to finances) and according to what they told me and what you have explained, their advice was rather unhelpful as my drafted letter contains mostly points that the rep had advised to bring up.

              I have been seen by the occupational health doctor and at my last visit he said that i could be classed as having a minor disability that would be helped by doing community based work. He asked me at the time if I wanted him to include this in his report and i said no as i was expecting to be moving into this job anyway, once I had passed my test. I am sure he would be very helpful in supporting me, if i went back to see him. IE, Not suggesting I am incapable of doing my job and that my daily pain levels would be reduced by working in the community.

              With regards to driving, due to the nature of my injury, it is continual weight bearing that causes me issues. Driving is much easier on my knee as there is substantially less weight excreted on the knee joint. Driving is also a small part of the job, the rest been split between writing reports in an office environment and supervising exercise routines with individual clients in their own homes. At the moment i am constantly walking round in a home environment for a full shift. I am always on my feet for the full shift.

              Thank you for explaining that what has gone before or being said is irrelevant, but if I was not told that I should pass my test so that i could take this option (community work), by my boss and his boss, then I would not have spent all the money I have on getting a driving license and car.

              So to sum up..

              My condition is causing me manageable pain every day I work. I am capable of doing my job well with no hindrance from my condition. My knee will need replacing when it wears out or becomes unbearably painful, then hopefully I will have a new knee with minimal to no pain, therefore still capable of doing my job. The only thing is, is that the more I weight bear on it, the sooner I will need a knee replacement. (I don't have to tell work this) The surgeons have stated that I am too young to have one at the moment if its not absolutely necessary due to the fact that you can only have two replacement knee joints and I am far too young to consider this at the moment.
              There is no need for me to be redeployed as I already work in this job, It is just a simple matter of rearranging the rota to accommodate this change, as all community based workers also have to work in the home on a rotational basis. I am totally confident that the occupational health doctor and my own would support my request, in the most sympathetic way and would word their findings in a way that I was not being declared as unfit to do my job and or that my job is not causing me further damage, just pain due to the long hours on my feet weight bearing.

              I hope I have been clear enough in all the information you might need to suggest my best course of action as you already have. I appreciate your time and wondered if you could just verify that your advice still stands and maybe you can give me a few pointers in how to put this across to have the greatest chance of success. Also thank you for stopping me send the original draft that would have obviously got me a big fat NO.

              Comment


              • #8
                Re: Can my employer change my contract and not tell me, affecting my disability?

                Ok, what you need to do here is throw out the history and go right bacj to the beginning. You have a medical condition and you feel that the employer could make reasonable ashjustments which will enable you to work more effectivelt and better manage your circumstances, so you would like them to consider these. That should generate a new referral to occupational health who will assess your situation and make recommendations to the employer. If those recommendations can be put in place the employer should action them. If they cannot it should produce an explanation as to why they cannot which will gibve you a foundation to pursue a grievance. That draws a line under the history, so you aren't fighting a battle with anyone about what they did or didn't say, and it should start a new page which hopefully you can all move forwards with.

                Comment


                • #9
                  Re: Can my employer change my contract and not tell me, affecting my disability?

                  Thank you so much for your help, I have had no internet for a while or I would have thanked you sooner. You have made it easier to see through the fog of personal involvement and I see how your suggestion is by far the best way to go. I will draft a new letter and will post back here for you and others, who may read this with similar a problem, to see how this progresses.

                  Comment


                  • #10
                    Re: Can my employer change my contract and not tell me, affecting my disability?

                    Originally posted by weehen View Post
                    Driving is much easier on my knee as there is substantially less weight excreted on the knee joint.
                    If you have trouble with weight being excreted on the knee joint, perhaps you should change your leg bag? msl:

                    Or did you mean "weight exerted on the knee joint"?

                    Comment


                    • #11
                      Re: Can my employer change my contract and not tell me, affecting my disability?

                      I found all this rather interesting regarding the knee problems,my wife has had knee problems for years always in pain standing walking and driving .4 years ago she had one knee replaced still the same problems with pain and the other one b=needs replacing,She is i constant pain and lives on tramadol and morphine patches and is unable to drive i cant see how like the OP she could do this job travelling and as we are told supervising exercises so how does the OP manage <without upsetting the OP i really cant understand her problems if she is in so much pain with knee problems how can she be so mobile as with others on here we have someone wanting what others have in the way of work and as this is not happenning she is raising a grievience and the boss is not wearing it

                      Comment


                      • #12
                        Re: Can my employer change my contract and not tell me, affecting my disability?

                        Originally posted by wales01man View Post
                        I found all this rather interesting regarding the knee problems,my wife has had knee problems for years always in pain standing walking and driving .4 years ago she had one knee replaced still the same problems with pain and the other one b=needs replacing,She is i constant pain and lives on tramadol and morphine patches and is unable to drive i cant see how like the OP she could do this job travelling and as we are told supervising exercises so how does the OP manage <without upsetting the OP i really cant understand her problems if she is in so much pain with knee problems how can she be so mobile as with others on here we have someone wanting what others have in the way of work and as this is not happenning she is raising a grievience and the boss is not wearing it
                        I do agree and I did suggest that the OP be careful. I too would query why driving does not exacerbate issues around dodgy knees - I know people experience pain differently and conditions themselves differ, but when my weak ankles are playing up driving is about the only thing that doesn't hurt! But you are correct to suggest that simply because the OP believes this to be true does not make it true, or something that OH will support - and since the OP will still be on their feet and doing the same kind of work in the community it does also raise questions about whether they are in fact fit enough to do the work without risk of damage. And that could put their entire role at risk. So they do need to be careful not to overstate the situation.

                        Comment

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