A worker is diagnosed with bowel cancer – what rights to preferred shifts do they have? Martin Brewer and Esther Smith advise.

The question: Diagnosed with bowel cancer – what rights do I have?

Upon a change of shift patterns within the company I opted to swap my preferred shift with my work partner due to her having a young baby and she would not have been able to work the hours offered. This was on the understanding that when a vacancy came about I would be able to take up the option on my preferred shift.  This was put in writing with personnel. Since then I have been diagnosed with bowel cancer and a new manager has been appointed. All my doctors that I am under consider it would be beneficial for my health to be transferred to my preferred shift because it involves only working three nights instead of four on the same pay.

The company has two letters stating this from the consultants treating me. Since being off sick the new manager has taken on a new person and has promised her the same shift when it becomes vacant that I wish to transfer to. She is quite openly going around telling people that she is only working four nights temporarily till I come back and then she will be transferred to three nights. She is on a temporary contract as well but the manager is fighting for it to be made permanent.

Whilst I do not consider the company should create a new position for me but as we are both under the same manager and it would involve him breaking his word to the new person can people please advise what my situation and rights are.

Legal advice:

 
Martin Brewer, partner, Mills & Reeve
 

Perhaps a key point to note is that because of your diagnosis you are deemed to be ‘disabled’ under the Disability Discrimination Act. One of your employer’s obligations under the Act is to make reasonable adjustments to any aspect of the work or work environment which places you at a substantial disadvantage compared with employees who are not disabled. It seems to me that if you can say that your health is or is likely to benefit from a change in shift patterns, it follows that you can argue that, compared to a non-disabled employee the employer’s insistence that you continue your current shift pattern is detrimental as compared with a non-disabled employee and that to alter your shifts would be a reasonable adjustment under the DDA. It will be useful to get your GP/specialist to write a letter confirming this which you can then present to your employer.

I would be surprised if their promise regarding shifts was enforceable as a contract, so that just leaves an issue around trust and confidence and what the employer promised to do and now seems to be stepping back from, which on the face of it is less than trustworthy, but enforcing rights in this context would involve resigning and claiming constructive dismissal. This is a big step and not one to be taken lightly so if you are considering it take specific legal advice.

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar