Posted By Andy
Dear all,

We had an employee who worked for us for two months, in this time they were referred to the nurse and GP several times with alleged ULD symptoms at each referral, the person was assessed, and employed in a variety of position within two departments over the two months. Some of these tasks were repetitive. This person’s employment was terminated after two months as an unsuccessful probationary period when a suitable role could not be found and considering that to continue this person’s employment would be detrimental to their health.

Lots of time of and visits to GP and nurse, differing roles offered, all were unsuitable in the eyes of the employee, the person is claiming disability discrimination through an ET, come on……..,

Can anyone help with some advice / case law ( I am aware of Page v Freight Hire

Thanks in anticipation

Posted By Andy
Robert,

Thankyou for your response, can I be frank?

Whilst I do appreciate your questions, I am not asking for an opinion on our employment process. Sorry to sound harsh, I do not mean to, I do appreciate your response and it is often helpful to ask searching questions. However, what I would really appreciate is any relevant case law and employment H&S law, particularly HASWA v DDA

Answers

1) The person was employed in various roles, mostly manual work such as labelling and packing products.

2) There is no disability in the eyes of the employer, (in the case of current evidence) only symptoms of WRULDS, nothing reported in employment screening

3) A medical inspection/screening is required and appropriate questions asked. Normal screening questionnaires etc

4) Question already answered, probationary period unsuccessful as no suitable role could be found within the company that did not cause the person to complain of ULD symptoms.

5) As previously stated, the person was referred to OHN, GP, company MO etc, varying roles were offered and the person spent two months undertaking these various roles, however, I have been told that the person complained of ULD symptoms from all roles.

Thanks again,

Regards

Andrew

Posted By Robert M Edwards
Try looking at the following;
Kenrick v HJ Heinz Co Ltd
[2000] IRLR 144, EAT, December 1999
Baynton v Saurus General Engineers
[1999] IRLR 604
O'Neill v Symm & Co Ltd [1998] ICR 481
Farnsworth v London Borough of Hammersmith and Fulham (June 2000)
Heggison v A & W Bernard (March 2000)
Morse v Wiltshire County Council
[1998] IRLR 352( for reasonableness of alternatives authority)

In my view the whole claim's success will be based on how your company treat other staff, the other jobs available to this staff member and what adjustments if any were attempted to assist here.

The disability question is one for the tribunal based on medical evidence and there are a plethora of other cases which outline the Tribunal's views on medical evidence, so care should be taken by you in deciding what to place before the tribunal to refute claims in this area.

Given the degree of medical investigation and the fact you mention symptoms of WRULD then it is likely that a disability will be found, particularly given now, no doubt that the applicant will be argusing that he/she is suffering from a disability and this was borne out by the problems with ULD in each of the jobs.

Posted By Merv Newman
Question 1: Has this person actually been diagnosed as having ULD ?

Question 2: If so, was this detected during the medical screening ?

If 1=yes and 2=no, then you have a problem. Otherwise, I don't see one.

Merv Newman

Posted By Dave Wilson
dont know if this is appropriate.

Coxall v Goodyear Great Britain Ltd

This case relates to a ruling that states where an employee ran a risk of physical danger by continuing in his employment the employer owed the employee a duty to dismiss him in order to protect him against that danger.

The Court of Appeal dismissed an appeal by the employers (Goodyear Great Britain Ltd), from an award of damages of £7,500 plus interest and costs to the employee, John Coxall, for occupational asthma suffered through working as a paint and line operator in the employers’ tyre factory in Wolverhampton. The employers were aware that the employee suffered from a mild constitutional predisposition to asthma.

The employers’ claimed that the judge was bound to hold that employers were not under a duty to dismiss an employee from work which could ordinarily be undertaken safely, merely because of some particular susceptibility on the employee’s part exposing him to risk of harm if he continued in that work. Rather, it was for the employee to decided whether to take the risk or not.

However, the Court of Appeal held that cases could arise when, despite the employee’s desire to remain at work notwithstanding his recognition of the risk he ran, the employer would nevertheless be under a duty in law to dismiss him for his own good in order to protect him against physical danger. That duty arose in this case.

Coxall v Goodyear Great Britain Ltd