Homeworking app declined and appeal declined

[BournemouthGary]

Hi All

 

I am a 34yo male who suffers from daily debilitating headaches, this i have suffered from for some 8 years now.

 

My condition is covered under the scope of the equality act.

 

The employer referred me to an occupational health who suggested home working, as the office environment is a likely trigger factor. His recommendation was a 50/50 split between the office and home office extension. If this were put into place the o/h doctor expected that i could resume my role in its entirety.

 

I subsequently submitted a flexible working application, stating the o/h report, they sanctioned, as the basis for this. This was reviewed and subsequently declined two weeks later. I appealed the decision, and the appeal has subsequently been declined. The reasons stated are listed within the regulation guidelines, detriment to customer service, lack of work, and i would have to work unsupported. Having worked in the business for some 5 years i found these reasons disappointing and not a true reflection of what would happen.

 

I've been left with two options:

 

1. Work condensed hours, with a period of phased return. I.e. work 8 - 6 Mon - Thursday with Friday off of work. This was trialed previously and had a negative impact on customer service.

2. Part-time hours. This i know would cause a problem for the business due to the numbers of colleagues working job share or part-time hours already.

 

I feel I have been left with no option but to return to work and 'put up with' the side effects the office causes me. This is achievable to a certain extent, but what happens when i suffer repeat attacks and need to take subsequent time off of work? Back to square one....

 

I've also been told that i have no sickness benefit remaining, however i do not class this as sickness absence as it is a disability/condition I suffer from. I'm waiting to hear back from my union to discuss what to do next. The letter ended with a statement that the appeal has finished and that the decision is final :/

 

My employer is large with >15,000 employees.

 

Kind regards

 

Gary

[BournemouthGary]

I forgot to mention under the available options....

 

1. This does not take into consideration the office as the trigger for the condition, and the intensity of my headaches at the moment means this is not possible.

2. Again no consideration for the office environment as the trigger.

[dmlferguson]

Can you clarify:

 

Did you apply for flexible working hours via the statutory right to apply

 

OR

 

Did you ask for reasonable adjustments due to your disbility.

[BournemouthGary]

If i answer a bit of both does that help?

 

The homeworking application was submitted under a flexible working request, where i need to ask for the reasonable adjustment to be considered. This was achieved using internal forms.

[assisted blonde]

If the office environment is the trigger to your headaches and your request to work from home has been correctly declined then I cannot see what else you can do other than resign before you are dissmissed due to sickness. As far as sickness benefit is concerned you have been off sick and just because you say it is a disability it is still sickness.

[BournemouthGary]

Thanks assisted

 

Can you please explain the difference between sickness absence and disability leave? It's about as clear as mud, my manager has verified I was signed off on disability leave.

 

People have suggested to me that a compromise agreement could be reached, as it would be difficult to dismiss due to disability. Is this an option or not, and if you don't mind my asking what experience do you have in these matters?

[Sidewinder]

I think what AB was getting at was more a move to dismiss on grounds of capability rather than sickness.

 

With the EA, it is generally not appropriate to use a standard measure of sickness where absence through a 'disability' (as determined by the Act) is concerned - in other words, if a fit and able colleague would trigger a disciplinary sanction after a specific period of sickness, then it would be unfair an unreasonable to discipline a 'disabled' employee at the same trigger point where the disability was the cause of the absence - there needs to be a different measure for the differing cause of absence.

 

In your particular case, whilst it would be unwise for the employer to dismiss solely on the basis of sickness, as this is complicated by the disability factor, they may well be inclined - and perfectly able - to move towards dismissal on grounds of capability. Providing that they have considered the disability and how it might be accommodated, and have considered any 'reasonable' adjustments which might be made to allow you to return to work, then they could decide to terminate employment on the grounds that you are unable to perform the duties for which you were employed.

 

Sadly, I feel that they are within their rights to reject the suggestion that you could work from home - the grounds that they have given in terms of supervision are probably sufficient on their own. In the absence of any alternatives which would allow you to fulfil your contract - ie at your contracted place of work, then I fear that you have only the two options remaining - to work, supported by medical guidance and pain relief if appropriate, or to look for alternative employment.

 

The OH review offered only an opinion, and whilst that opinion might be valid, it still leaves the fact that the employer is unwilling to accept homeworking - as he is entitled to do, unless of course any other employee is in the same position and IS allowed to work from home. Has your own GP been able to offer any suggestion as to how you might return to work.

[assisted blonde]

My understanding of the difference bewtween sickness absence and disability leave is that the disability leave is not counted towards any totting up process of sickness for the purpose of disiplinary actions.

However that dosnt mean that the disabilkity leave is of an indefinate period, I think there has to be a limit from the employers point of view as far as covering your position is concerned and as far as I am aware it dosnt mean that you get any more paid sickness than anyone else is entitled to.

I am not employed as an employment lawyer,, and this is not my main area of professional experience.

[dmlferguson]

It may be too late now BUT you should not have had to apply for flexible working via the right to apply. What you should have done was, go to your employer and asked that they make reasonable adjustments due to your disability. You should have supplied the information from the OH and been in discussions with the employer but, untimately, it is their responsibility to make reasonable adjustments to make you able to fulfil your role.

 

Whether reasonable adjustments would extend to working from home is up to your company but I think they have answered that. Let them tell you what they believe to be reasonable.

 

My next step would be to return to my employer with the OH report, be polite but firm and leave it to them to suggest reasonable adjustments to me. But its up to you what your next step is.

 

Best of luck.