Case 3 - Security van driver with progressive arthritis – making reasonable adjustments

Key points

• A security van driver has recently diagnosed arthritis and the firm wants to give him ill-health retirement.
• The employer has assumed that the employee’s condition poses a risk to health and safety.
• Reasonable adjustments have not been considered.

Owen is 53 years old and has recently been diagnosed with arthritis. He finds it difficult to walk up and down stairs, and it causes him pain, particularly first thing in the morning. He works for a security firm as the driver of an armoured van and his supervisor has noticed that he is having trouble getting into and out of the vehicle, though there have been no concerns over his driving ability. On discussion with the site manager, the supervisor informs Owen that he will have to accept ill-health retirement because his condition compromises his health and safety, and that of his colleagues and members of the public. The supervisor says there are no alternative jobs. Owen’s doctor believes that his condition will settle down once he gets used to the medication, but the supervisor says he cannot afford to take that chance and has recommended to the personnel officer that the ill-health retirement plans be set in motion.

What are the issues?

The employer assumed that because Owen has problems getting into and out of the van, that he is incapable of doing his job safely and that ill-health retirement is the only option. The employer has not said why they think he is a danger to members of the public or his colleagues. The employer has not considered any reasonable adjustments that could help Owen. It may be that they feel that ill health retirement is a much simpler and cost effective option, but in fact this is unlikely to be the case, because there may be adjustments that could help Owen (including support from Access to Work) and the cost of his retirement, and the recruitment of a replacement worker, is going to be much more expensive than making adjustments to enable him to continue working.

What is the right approach?

A discussion between the supervisor and the site manager does not amount to a health and safety risk assessment. There may indeed be risks to safety associated with Owen’s arthritis but these need to be assessed, by a qualified person. The employer needs to identify what the real risks are and not assume that Owen’s arthritis compromises health and safety, even if the supervisor has noted that Owen finds it difficult to get into and out of the van. The employer needs to look at measures that it can put in place to prevent or control those risks.

Before coming to any decision about Owen’s employment, he should be referred to a qualified occupational health practitioner who will be able to help assess the likely impact of the arthritis on his ability to carry out the job. Owen will need to inform the practitioner about his medication and the physician may advise that he be temporarily reassigned to other work with a follow-up evaluation to assess his fitness for work once the treatment has had chance to alleviate the symptoms.

Owen is likely to be protected under the Disability Discrimination Act even though the condition has only recently been diagnosed, arthritis is a chronic condition and therefore likely to last more than 12 months (one of the qualifying conditions of the legislation) and it affects his day-to-day mobility (climbing stairs is difficult). The employer must consider putting in place any reasonable adjustments to help Owen work safely and productively. Possible adjustments could include minor modifications to the armoured van to help Owen with entry and exit, assigning some of his duties to colleagues and considering flexible working, for example recognising that he may need to do different jobs on days where his condition worsens. Another reasonable adjustment may be to find him suitable alternative work – with appropriate training if necessary – and the employer should explore other job options thoroughly before asserting that no positions are available. An occupational health practitioner will be able to make recommendations about his fitness for work, taking on board the impact of reasonable adjustments.

It is important that the employer doesn't make assumptions about Owen’s condition and that any decisions are made on proper assessments of his fitness and capability – which may need to be modified in future if his arthritis worsens – and of the risks to health and safety.

If the employer insists on pursuing the ill-health retirement, Owen may wish to challenge its decision. He should put his request in writing. The two parties may be able to resolve the dispute at this stage, particularly if the employer has made assumptions about the impairment without thinking through the true implications for the work. The best way to do this is to arrange a meeting between the employee, any representative that they wish to be present (for example a union official), the line manager, Human Resources and equality representatives, occupational health and any other advisers that can help to resolve the issues.

If the employer fails to give Owen a reasonable response and he suspects that he has been treated less favourably because of his disability he can then make a formal, written grievance under the terms of the employer’s grievance procedure. Once he has exhausted the internal grievance procedure (which should include an appeals mechanism) he must then decide if he wants to take the matter further by taking his case to an employment tribunal. In a tribunal, the onus will be on the employer to show that it had fulfilled its obligation to put in place reasonable adjustments, including alternative work.