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Advice sought on new Carer's rights - Page 2 - Carers UK Forum

Advice sought on new Carer's rights

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I have been reading the Sex Discrimination Act and the Human rights Act.

As a female carer if the mangement are attempting to apply this rotation of staff and trying to get my wife to come off of permanent Night Duty is the application of this Indirect Discrimination?

On the basis that carers are generally female ( I have no figures to prove otherwise) in the NHS or indeed within my wife's NHS Trust, as opposed to the male nursing staff who perhaps are not carers, is the application of a rota which includes day shifts, which is something that my wife cannot do, is this Indirect Discrimination? I am assuming that 100% of the male nursing staff can rotate whereas the percentage of female staff with caring commitments is substantial and are disadvantaged because of the policy.

Similarly is the Human Rights of a working carer being breached by the unjust policy?


Please apply your knowledge to this.

Many thanks
Hi papasmurph, I don't think that the sex discrimination Act tactic will work. All the management have to show is that if a male nurse was in the same position as your wife, then he would be treated the same as she. The fact that there are fewer male nurses than female who are Carers does not seem to me to be a significant factor in the argument.
I am glad the RCN are now involved, and your wifes sickness due to the stress she is suffering as a result of management action against her should clearly be a factor if she is to seek compensation or a financial settlement of the dispute in the future.
best wishes normangardner.
Thanks Norman very helpful. Are you legally trained?

Could you enlighten me as to why the sickness is a factor in any compensation or financial settlement?

Re the discrimination please look at the following extract from a site on the internet.


Indirect sex discrimination consists of treatment which may be equal in a formal sense as between the sexes but is in practice discriminatory in its effect on one sex. Indirect sex discrimination arises where a person applies to a woman a condition or requirement with which she must comply in order to qualify for, or obtain, some benefit or avoid some detriment, and where the condition or requirement satisfies all the follow criteria:
(a) it is applied, or would be applied, equally to men and to women;
(b) it is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it;
(c) it is to the detriment of the woman in question because she cannot comply with it; and
(d) it cannot be shown by the person applying it to be objectively justifiable irrespective of the sex of the person to whom it is applied.

A requirement will be objectively justified if it can be shown that the requirement:
(i) is to achieve a legitimate objective, eg a genuine business objective;
(ii) is necessary to achieve that objective; and
(iii) is an appropriate way to achieve the objective, weighing the degree of disadvantage to women (or men) against the benefit gained by achieving the objective.



The bit I am interested in is (b)

(b) it is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it;

All I was thinking was that as the burdon of caring unduly rests upon the woman generally that there appears to be an indirect consquence following the actions of the management decision to apply this rotation policy across the board without taking individual circumstances into account. It does not say numbers but proportions. In the context of NHS staffing this could mean that greater numbers of women could be employed than men in the nursing role BUT the proportions affected by the policy could be vastly different. So if the proportions are significantly different is there not indirect discrimination between the sexes?

I realise that I may be clutching at straws and that this argument is not the strongest but if it is wrong it is wrong.
Hi papasmurf.

The sex discrimination idea is a little thin to some extent, but not necessarily entirely anorexic.

The majority of nurses are female. I don't have figures but it's fairly obvious unless there are a lot of cross-dressers....

The majority of carers are female - 58% in the General Household Survey 2000 (the figure is fairly constant). More importantly, that percentage increases when you look at the number of carers of working age - the gap between men and women narrows at 65+.

So any decision by the Trust may well mitigate against women more than men in its execution, which may help towards the overall case but I wouldn't rely on it.

I'd look more to find out if they are reducing night shifts or closing overnight wards. If so, then it's an overall policy and difficult to fight because the needs of the organisation have changed. However, if not, then what is happening may be seen as victimisation or constructive dismissal.
Hi Papasmurph. I am not legally trained. When I was a shop steward this sex discrimination legislation had not been invented.
I am simply considering the case I would have made in these circumstances thirty odd years ago in the light of my own ten years nursing experience.
I think Charles has a good argument and (b) may be a fall back position. But the RCN know what they are about and I am sure her Rep and the RCN legal department will help her get the best settlement possible. Especially if other Trusts are using the same tactics for whatever reason.
best wishes normangardner
Thanks Charles and Norman

As I said I realised it was a week argument but I wanted to have ALL available arguments available to enable my wife and the rep to forcably put forward our side and for management to think again. Its another arrow to her bow.

I don't think there is a policy to get rid of night shifts, as night duty staff are required across the Trust on most wards. There may be some truth in the fact that 1 ward has converted onto days as the hospital are trying to achieve maximum funding through quick turn arounds of numbers of patients. However overall I do not feel that this action against my wife is about a policy to get rid of night shifts rather a policy to get rid of permanent night shift staff, there is an e-mail indicating this to all ward managers. Although it is not being fairly and consistantly applied across all wards at present.

Thanks Charles for the figures. It is as I suspected. Any ideas as to where I can get historical and up to date figures?

Regards
Try the Census website - don't have the info at home, I'm afraid. But the important thing is that the 58% figure was constant across several sets of figures, and is regarded as accurate as far as I know. I'll try to find time to have a look.
in 1997 i was working for tyne wear metro as an overhead linesman i had been working nights for about 10 years and during the day i was looking after both of my parents but when they told me i was going back on shifts i had to give up work had i been working 1 week nights and 3 weeks days on the day shifts my father would never have got out of the house.
It's just a thought, but I wonder if the right of Carers to request 'flexible working' could be applied in this case. i.e. the right to work permanent nights as an exception to company / Trust policy to reduce the number of permanent night workers.
Permanent night work may have deleterous health effects and may reduce efficiency at work in some cases.
All I have read on the new legislation seems to be aimed at day workers being allowed to work split shifts or start early or late, as dictated by caring responsibilities. Night shift workers do not appear to have been considered in the legislation so far as I know. Maybe someone at CUK (Christine) may be able to update us. Or the RCN may have thought this one through.
best wishes Norman
Thanks Charles for the Census site. I looked it up and there is some good info there.

g.herschel thanks to you too. I imagine this problem is more widespread than one would think.

Norman, this flexible working right is what the mangement want my wife to discuss. However her position is that she has already sorted out her work / home commitments satisfactorarily. It is their insistance for my wife to be flexible which is the problem. Asking for her to work night duty as an exception I doubt will work because the mangement are approaching the meeting with the idea that my wife has to compromise ie she has to shift not them. Let's face it "compromise" means only that the person with no pulling power has to give. They are trying to bully her into moving. From what I have read about the Flexible working rights is that the employer has to consider the application but does not necessarily have to agree to it as long as there is genuine business reasons to reject it. That is what they are saying that times have changed and my wife's shift pattern is not a good business reason for them now.


I'll keep you all posted as to developments.