Redeployment Rights

[Nasmamu]

Hi guys hope somebody can help. I'll try and be a breif as possible but in truth its a long one!

My employer is forcing me down the redeployment route due to capability instead of making adjustments to help me stay in my current role. I have cerebral palsy and crohns so need access to a disabled toilet but there isnt one on the floor im on. I have to get a lift to a different floor to use a toilet there. I work in a call centre and cut off a call to rush to the disabled toilet on another floor but this was seen as call avoidance and in December i was told to attend a disciplinary with the threat of dismissal. I attended with a union rep and my employer realised theyd made mistakes and didnt dismiss me, instead giving me a final written warning for 12 months. My employer said as part of my returning to my role they would look at adjustments, namely putting me on a floor with a disabled toilet. Meanwhile i was told to do "other duties" in the post room whilst adjustments were made.That was in december. They arranged an occupational health assessment where i spoke about my condition openly in the hope it would move things along. It is now June, ive have been in the post room since december eagerly awaiting the adjustment to be made and heard nothing for 5 months until last friday. I was invited to a formal capability meeting which i attended. In the meeting i was told due to my illness i was not capable of doing my job and they needed to look to redeploy me. Failure to adhere could result in dismisal with notice. I have 2 questions please.

1) Can they look to redeployment without making reasonable adjustments to see if i can do the job? All im asking is to moved to a different floor. They seem to have used the occupational health assessment report to base their decision on. My argument is ive done this role before albeit for different employers and theres never been an issue because a disabled toilet was on the same floor so i didnt have to treck half way round the building.

2) I have read somewhere that if i get redeployed to a job at a lower pay grade due to disability that there may be a way of protecting my existing salary. It was a tribunal case in 2016 involving G4S. Would this potentially be the same if i went from full time to part time. Im currently contracted to 37.5hrs a week. But have seen an internal vacancy that sounds suitable which is only 30hrs a week. The drop in salary as its a lower grade and is less hours amounts to almost 250 a month which i cant sustain. Could i demand pay protection as part of redeployment? Im not the one saying i cant do the job, im saying i can do the job but just need a reasonable adjustment. My employer doesnt want to make the adjustment and is insisting on redeployment or dismisal.

Could really do with some advice as im rather perplexed.

[ULA]

If you do not mind me asking what is your level of disability with your cerebral palsy? Would this have been evident at your interview and if so were you asked about what, if any reasonable adjustments, would need to be considered if the company was to recruit you.

Also, did you get to see a copy of the report from OH, the option for which you should have been given at the time.

When you were invited to the meeting last Friday, how much notice was given, was the purpose of the meeting provided, was this detailed in writing, were you given the right to be accompanied? Have they formally notified you of the outcome and given you a right to appeal?

Sorry a lot of questions?

I am presuming that there has been no response from your employer in regard to your request to make a “reasonable adjustment” by way of moving you to a floor that has a disabled toilet. If you have not been told what the outcome of that request is, prior to any discussion about redeployment, then I do feel that the company has not completed their obligation to fully consider any such adjustment and discuss with you their decision.

In the case you mentioned yes, the Employment Appeal Tribunal did find that moving to a lesser role “while not an “everyday event”, there is no reason why pay protection cannot be a reasonable adjustment as part of a package of measures to get an employee back to work.” However, I would need to do more checking to understand whether this would be the same in the event that you move from full-time to part-time since, the G4S case I believe, was based on the person remaining on the same hours but in a lesser role. You may be able try to argue the same hourly rate but this would then need to be applied to the reduced hours as prescribed by this role not your full-time hours you currently do.

[Nasmamu]

Hi Ula,

Many thanks for your reply. I really appreciate it.

To answer your questions

My Cerebral Palsy isnt so bad that im wheelchair bound but i do walk with an abnormal gait and have pain in my lower limbs when i move. I cant walk long distances and have really bad balance which results in frequent trips and falls. I did get asked if any adjustments were needed and did say i needed a disabled toilet on the floor. During training there was a toilet on the same floor so no problems. I was told the floor i was going to be based had 1 too but this later turned out to be a locked cupboard...

the problem is, and this is where im culpable. I never let on that the lack of a toilet was an issue because i was new to the job. I never knew what the equality act was as never needed to call on it so was fearful of being managed out.

yes i did see the occupational health report at the time the report stated that due to the unpredictable nature of disease at moment i should stay off the phones and as a recommendation my employer should wait till treatments (which im waiting for) take affect and take further action then. Ive been off the phones waiting for the adjustments whilst working in the post room for 9 month now (since 2nd October) me waiting on them, not the other way round. Instead of going with the recommendations they decided to proceed to a capability meeting.

with regards the actual meeting yes all procedures were followed, at this moment there hasnt been a right to appeal as im still employed and theyre going off the "were trying to help you find a role that is better for your health" line. But the chair of the meeting mentioned that if im unsuccessful in redeployment then ultimately it will lead to dismisal with notice. I went along with it and applied for a job that wasnt as phone heavy and unfortunately didnt pass the interview...even though it was a job id done as part of my time off the phones...the person who interviewed me knew i could do the job theyd seen me do it for 3 months but said i didnt reach benchmark at interview. The manager who is "helping" with my redeployment mentioned (at the start of the redeployment) that we cant just transfer you to a role you still have to pass the interview...i now know this to be false as ive spoken to the equality comission and ACAS who both cited Alchibald Vs Fife Case Law as a case where an employer is expected to transfer a disabled employee as part of reasonable adjustments. I trust this is correct. The job i applied for is a lower pay grade so its not like i was getting above my station.

yes you are correct they have not done anything about reasonable adjustments in regards the toilet access and from the conversation in that meeting it sounds very much like redeployment or nothing. Ive gone along with redeployment and only realised later that they are looking at redeployment based on the OH report and not even considering making adjustments promised in december.

The main reason why i asked if the OH report is something they can base their decision on is because i have a feeling that if (i havent yet) i raise a greivance of having to go through redeployment without them making adjustments in my current role. I feel they will cite the OH report in particular the part that says im unable to fulfil the role. My argument is I CAN fulfil the role IF the adjustments are met. And if it does end up at tribunal how much weight does the OH report carry for the employer? Im worried that the tribunal will see that OH said i was not fit to do the job and advised the employer and the employer is just going off the report so is exonerated. Whereas in my opinion i believe they are bring devious by acting like they are helping but only fulfilling an obligation to cover themselves...theyre actually trying to constructively dismiss me, its hard to prove i know.

sorry my answer is all over the place but i hope it offers a little more clarity into the situation.

thank you.

[ULA]

Thank you very much for your detailed response. From what you have said you clearly identified at interview that a reasonable adjustment you needed was a disabled toilet on the floor you would be working from. That was a requirement from the time you commenced employment and would obviously be an ongoing requirement. I do understand your position with regard to not wanting to mention anything when this did not happen after your training and that should not be a factor going forward.

I do feel that the company has not dealt with this matter in the best way. They recruited you knowing that a reasonable adjustment would be needed to your work environment by ensuring there was a disabled toilet on the floor you were working. This has not happened, therefore you have not been given the opportunity,

with the provision of the reasonable adjustment,

to prove that you are capable to carry out your role in the call centre, for which you were employed.

The reliance on the OH report is therefore a stage too early in my opinion. What should happen is for the reasonable adjustment to be made and then if there is still an issue with you being able to perform your job then the OH report will have its place.

I have checked the Archibald v Fife Council which went to the House of Lords, however its relevance for your situation comes only after any issue of capability is raised following a reasonable period of time to assess your performance, after the adjustment has been made. It is important to point out that the House of Lords did not hold that Mrs Archibald ought to have been transferred into the alternative vacancy. Instead, they held that it had been an error of law for the employment tribunal not to consider whether it was reasonable for the council to do so. Accordingly, under the Disability Discrimination Act s 6(3)(c), the duty to make reasonable adjustments included transferring an employee to "fill an existing vacancy" can include the possibility that a disabled person be placed at the same or higher grade without any competitive interview if that is reasonable under the circumstances. The House of Lords therefore concluded that the tribunal had never considered whether the council had fulfilled its s 6 duty, and that the case should be remitted back to the Employment Tribunal to determine that question.

Practically, as a starting point, I would suggest that you consider either an informal or formal grievance in regard to the fact that you had a discussion about a reasonable adjustment at interview, you assumed this was going to be accommodated when you were offered the position and that you were given the expectation that this would happen once you moved from the training environment to your permanent work-space.