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Posted By Shane Johnston
We have some concerns regarding the health of one of our vehicle mechanics(very large person who keeps falling asleep, out of breath walking a short distance etc). We have restricted his work (he used to drive HGVs on occasions), but he insists he is fit for work. He refuses to get his GP involved, and refuses to attend a medical with our Occupational Doctor. He is not co-operating with his employer and I believe is acting unreasonably. Is there anything else we could do before I recommend diciplinary action ?
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Posted By Paul Leadbetter
Shane
If you believe that the employee's condition is work-related, then you have a duty to investigate. The employee is under an obligation to co-operate with the employer to enable them to comply with the law. You could try reminding the employee of this obligation but you may have only limited success given his attitude so far. Persuasion might work; something along the lines of 'if your condition is not treated, you could end up untreatable!'
Paul
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Posted By Shane Johnston
I do not know if we are putting the individual at risk due to his health. After all how can we conduct a suitable risk assessment, if we do not know if we have an extra duty of care towards this individual.
Given the fact that the individual has a legal obligation to co-operate with his employer on H&S, should we recommend disciplinary action simply for refusing to co-operate? If an employee refused to wear PPE, would we would, sooner or later, recommed disciplinary action, and is this not just another case of refusing to co-operate?
Shane
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Posted By Neil Pearson
This is close to the territory covered in Coxall v Goodyear GB Ltd last year, but in that case, a works doctor advised Goodyear to remove an employee from work on health grounds and the employee wanted to continue anyway.
Of course the duty to co-operate applies, but also the duty to take care of his own health & safety. It would be wise to liaise closely with the HSE Inspector. Also, from the statutory point of view, make sure you have a formal policy or procedure outlining that employees may be asked to attend an occupational health referral in such cases. This gives you something more specific that the employee has to co-operate with. In fact, as I understand it, a formal company policy is an implied term of the employment contract.
I suggest following your disciplinary procedure as you say, and also prepare a risk assessment purely for this employee, which takes into account your subjective feelings about his health, even though you do not yet have a professional medical opinion.
The really tricky part is when you get to the business end of your disciplinary procedure and he still doesn't co-operate. Do you dismiss the employee? Jump off that bridge when you get to it, but the case law seems to suggest that you are not under a duty to dismiss so long as no-one else is put at risk by the employee's behaviour. BUT if there is any risk posed to other employees then I believe you should dismiss, but this is fraught with uncertainty. The only way to get a fairly authoritative answer is to commission a report from a barrister.
I'll be fascinated to see other peoples' takes on this case.
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Posted By Robert M Edwards
We suggest you sit down with him and his line manager to discuss the Health and Safety issues and performance issues present here. That will take you further forward than you are at present. If he is asleep at work then there is a performance issue as well as the concern over the lack of mobility. These areas should be discussed before any disciplinary action is taken.
You should also do a risk assessment of his job role on his job now and compare it with his job description. This provides further scope for you to revisit the disciplinary route if you need to. His total performance needs to be addressed as it is rare for employees suffering in the way you describe not to be falling short of other performance indicators.
Once you get through the stages above then you will be in a far stronger position to take action if it is required. Time also to look at your staff handbooks over agreement for a medical or GP referral and the frequency of medicals in certain roles. If this aspect is cleared up you will then avoid HRA problems over lack of consent if this happens in the future.
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Posted By Paul Birney
Every where that I have worked, falling asleep at work was classed as gross misconduct from both a production and a safety viewpoint. Perhaps the threat of such action may encourage the employee to be more reasonable
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Posted By STEVE
Need to be careful here whilst we dont know the full facts.
Shane doesnt mention where or when the Individual is asleep.
If he is asleep at dinner -breaks or tea-breaks is he classed as being at work?
Are other employees complaining about him not doing his share?
If he is a large person, he will obviously get short of breath and tire easier.
Should he be disciplined for being ill, as you indicate by referring him to his doctor or the Company doctor
Is he being discriminated against for being large.
How long as this being going on?
Cannot work mates find out any useful information, or suggest your concerns and reasons for the demands.
Surely we are better than having to resort to the disciplinary root if issues are not resolved as quick as we would like them to be.
Steve
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