We have recently introduced rotational shifts into our workplace.  We have an employee who says he is unable to work the shift pattern due to a medical condition.  We need all the employees to participate in the shift to make it work efficiently.  What should I do about this employee?

I recommend that you firstly ascertain the nature of the condition the employee says he has.  You should fully engage with the employee, meet with him and request additional information about his condition; ask for access to his medical notes and records and obtain the necessary written consent to do so.  You should also consider asking him to attend for review at an Occupational Health (OH) physician who could provide an expert opinion on the condition, review information from the employee and the contents of the employee’s GP notes and records.  You may ask the OH consultant to consider what role/job responsibilities this employee can undertake, considering the condition he has and provide details of the role undertaken, the nature of the shift patterns and any other alternative employment available so that the OH consultant can fully consider what adjustments or roles may be suitable for this employee. The OH physician should be able to give some indication whether the employee’s condition is a disability under the Disability Discrimination Act (DDA).

Following receipt of the report from OH you should engage again with the employee.  The contents of the report should indicate whether the OH consultant assesses that the employee’s condition meets the requirements of a disability under the DDA.

The report might suggest that the condition is not a disability and consequently, this means that the employee does not have protections as a disabled person under the DDA.  You should however engage with the employee to see if there are ways in which the employee could participate in the shift pattern you have, or whether you could change the working arrangements etc to accommodate him.

The OH report may say the employee suffers from a disability, under the DDA, but can continue to work a rotational shift pattern without any adjustments.  The disability diagnosis automatically triggers your obligation to consider reasonable adjustments to facilitate the employee within the workplace. Again, you should meet the employee and encourage him to participate in the rota.  As with scenario 1 above, I suggest you closely liaise with the employee in order to discuss OH advice that he can participate in the shift pattern. Despite this advice you might still wish to consider if the shift pattern might be adjusted in some way to accommodate the employee.  I would guard against taking immediate action to terminate the contract of employment until you can demonstrate that you have considered the employee’s concerns, possibility of changing the shift and alternative duties/hours for him.

The third possibility is that the OH report confirms that the employee’s condition is a disability under the DDA and that he cannot work the shifts suggested.  Again, this would automatically trigger your obligation to consider reasonable adjustments to facilitate the employee within the workplace.  As above, you should meet with the employee and liaise with him to consider what steps you may take to accommodate him.  You ought to consider whether the possibility of any adjustment to the shift pattern, or to offer alternative employment, might help to alleviate any disadvantage the employee may suffer due to his medical condition.  You ought to think about whether allowing the employee additional breaks, shorter working hours within the shift pattern itself, or indeed guaranteed set hours may be possible.

Alternatively, if you believe you cannot facilitate the employee working within the shift pattern itself, you should consider the possibility of an alternative role for him within your organisation.  As the employee has a disability, you must consider all reasonable adjustments and whether the adjustments are reasonable for your organisation will, in part, depend on the size of your business, the actual resources and other staff available to you, and the costs that you might incur in implementing any of the adjustments.  All of this should be fully documented and discussed with the employee. OH may have already commented on possible adjustments and, depending on the nature of the employee’s condition, you could also consider the possibility of seeking other external assistance and advice in order to facilitate the employee at work.

Only after these steps have been taken, could you reasonably consider whether to dismiss the employee due to capability concerns.  You will be aware you could risk proceedings for unfair dismissal, disability discrimination and failure to make reasonable adjustments.

The main content of this email was provided by Patricia Rooney of Tughans Solicitors in Belfast.  Patricia works exclusively in Employment Law and should anyone have any queries she may be contacted on:

Patricia.rooney@tughans.com

028 9055 3300                              Website: www.tughans.com

 

 

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.