I am currently on a permanent 37.5 hour contract with the NHS. I was diagnosed with a debilitating condition two years ago and have tried to manage my role at work with this condition with relative success. My issue is that from a couple of months from now I will be expected to work on an on call basis on a rota of one in four. I feel like I am unable to work this many on calls due to my condition, so would prefer one in 10 at least. This has been backed up by Occupational Health, Occupational Therapy and my GP yet my manager is still dragging her heels. On the last occasion I asked her, she said that I would have to work part time in order to do part time on call. Is this appropriate? I feel like this is very unfair and would mean that I would have to try and find a new job that is full time.
In order to be protected from discrimination your condition must meet the legal definition of a disability (as opposed to the medical definition) which is ‘a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’. If you intended to pursue any action then ultimately it would be up to an Employment Tribunal Judge to decide whether your condition constitutes a disability. However, I understand that yours is a long term condition so whether it would qualify you for protection under the Equality Act would most likely come down to the severity and effects that is has on your ability to carry out normal day-to-day activities.
If your condition does constitute a disability under the Equality Act definition then your employer is under a duty to make reasonable adjustments in order to assist you in fulfilling your duties, such adjustments are usually recommended by Occupational Health professionals.
You have obviously been referred to Occupational Health and it appears as though they have supported the recommendation that you be put onto a rota of one in 10 on call shifts as opposed to one in four. I understand this recommendation is also supported by your GP. In light of this, your employer would need to show a very good (business) reason for refusing the recommendation, in light of your condition.
If your employer refused the recommendation on the basis that all staff are required to work a rota of one in four on call shifts, and you can show that this would disadvantage you or be detrimental to your condition, then you may have a claim for indirect disability discrimination. In order to bring such a claim you would have to identify a practice, criteria or provision (“PCP”) that is applied to all staff members in the same way (in your case the requirement that staff work a rota of one in four on call shifts) but that the PCP puts you at a disadvantage because of your disability (deterioration or aggravation of your condition).
Clearly there are risks involved with any litigation so I would always advice that you try and sort the matter internally before instigating any legal proceedings. You may consider making a flexible working request on the basis of your condition (and the Occupational Health and GP advice) to formalise your working pattern and ensure that you are put on a rota for one in 10 on call shifts. If your employer refused your flexible working request they would need to show one or more legitimate business reason for doing so. Alternatively, you could raise a grievance if the request is refused and indicate you feel that it may be indirectly discriminatory against you on the basis of your condition.