Q My doctor has given me a fit note that recommends that I shouldn't lift or carry any loads, but my employer is threatening to fire me if I don't continue to do my usual work, which involves a lot of manual handling. Can I take legal action?
Your employer has a statutory and contractual duty of care, which includes a duty to take care for your health & safety at work. In the circumstances your employer should undertake a risk assessment to assess the risks associated with the requirement to carry/lift loads. If your employer insists that you continue to lift and carry in circumstances where you have medical restrictions, it is likely to be in breach of its contractual and statutory duty of care, which could give you a claim for constructive unfair dismissal, if you choose to resign.
Your employer also has a duty not to discriminate against you on grounds of disability. Whether you are disabled within the meaning of the Equality Act 2010 will depend on whether your physical impairment has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities (such as mobility, ability to lift everyday objects etc.).
If you are disabled, you may be able to bring an Employment Tribunal claim for discrimination arising from your disability and a claim that your employer has failed to make 'reasonable adjustments' to your role in light of your disability. Reasonable adjustments in these circumstances may include amending your duties to remove the requirement to lift or carry loads or, if manual handling is integral to your current role, transferring you into another suitable role, in which you will not be required to lift or carry.
If your employer considers that it is unable to make any reasonable adjustments to your role, it may decide to dismiss you on grounds of capability. In that instance, you may also have a claim for unfair dismissal (if you think your dismissal was not on the grounds of a permitted reason and/or unreasonable) and direct disability discrimination (if you think you were dismissed because you are disabled). However, it may be reasonable and not discriminatory to dismiss if no reasonable adjustments can be made.
We recommend in the first instance that you speak with your employer about your condition and if necessary, raise a formal grievance in accordance with the grievance procedure before you take any action.
Q The wife of one of my employees is due to have a baby in the next month or so and I understand that there are new rules relating to shared parental leave. I am concerned that this employee – who is key to maintaining our production efficiency – might take advantage of these rules to the detriment of the business. I don't want to be left holding the baby, as it were. What does the law allow me to do?
In brief, shared parental leave (SPL) allows eligible parents to elect to share up to 50 weeks of leave in order to care for a newborn baby or a child placed for adoption. SPL can be taken in one continuous period of leave, or during discontinuous periods.
Your concern about the loss of a key employee to SPL is shared by many employers. However, the Government estimated that between only 2% and 8% of employees will take SPL; it is not expected to be popular. The fact that your employee has not yet given the requisite eight weeks' notice of both his entitlement to take SPL, nor the period[s] of leave that he wishes to take, may mean that he does not intend to take up the right.
What you can do if your employee does elect to take SPL will depend on the type of request. If it is for one continuous period of SPL, you have no choice but to accept it. If the request is for discontinuous periods, you will have two weeks to accept it, propose alternatives or refuse it. If you refuse, the employee may take the total amount of leave requested as one continuous period or withdraw his notice.
The ability to refuse a request for discontinuous periods would give you some control over the employee's absence, however providing a flexible approach to a request for discontinuous periods of SPL should not be undervalued in terms of employee relations, productivity and loyalty. However, it may be easier to mitigate the effects of an absent employee for a continuous period rather than a discontinuous period as it may be easier to find temporary cover.
