Posted By Jim Walker
Hi Wendy,

You seem to have joined a group of “disabled persons bashers” in the forum this week (see various postings).

I’ve no experience or knowledge of tribunal investigations, but would like to make a few comments on your scenario.

Last time I looked, there was a specific requirement under the Management of H&S at Work Regs. to consider various persons who might be harmed (ACOP para. 21) – disabled staff is one mentioned. My interpretation therefore is you can’t just slap a system of controls based on a “fit person” and shoehorn subsequent hires into that category. Also, the RA needs reviewing when “significant change in the matters to which it relates” (reg 3.3b) happen – in this case, when the disabled person started the job.

Unless the employee was fully (totally) conversant with the company work systems how could he reasonably declare no adjustments are required? Why was he required to sign such a statement? Was he also competent to do the risk assessment as well?

If this training was such an essential part of the risk control, how come it took the company two years to spot the lack of the training (absence of an important control)? Training is well down the hierarchy of controls and should (in my opinion) really be only used to control residual risk. But by implication, this task carries such a high risk (without the training) that someone is to be thrown out of work.

It looks to me like both DDA AND H&S failures, as the company has breached the MHSW regs by not applying their own RA.

Maybe if as much energy had been put into finding alternative control measures as has obviously been put into confrontation, everyone might be happy.

Posted By Geoff Burt
Agree Jim, there does seem to be a general desire to side with the employer. It would be interesting to hear the 'tried and convicted' persons point of view.

Also interesting that the training appears to carry more risk than the job, or have I read it wrong?

Geoff

Posted By Hilary Charlton
I think I must be missing something here - the guy has been employed for 2 years, during this time no one has noticed that he has not completed his training? Fair enough it can happen, however, no one has noticed either that he is not doing part of the job, the physical part referred to in the risk assessment. Well, is he doing the complete job or not?

At this juncture the main question would seem to me to be "is the risk assessment for the job correct?". Surely if the person has been doing the job 2 years without this training then this training could be regarded as "superfluous". Surely theoretical training could be carried out if the employee cannot undertake the physical training and, quite obviously, from not having to undertake this task for 2 years he doesn't actually need to do the physical stuff. Additionally, if he can't actually do the physical part then he is not very likely to suffer risk from it is he?

I'm not trying to suggest that anyone is a disabled person basher, it is a difficult situation but certainly there is something seriously wrong with the system employed when dealing with this person.

Sorry to be the bearer of bad tidings but I really don't think you have a case.

Posted By Hilary Charlton
You're right Geoff, I don't know if its a man or a woman - force of habit I'm afraid, I work in a heavy engineering plant where 90% of the workforce are men and most H&S people in my environment are men so I get into the habit of assuming that everyone I deal with is going to be male - which is a silly assumption really when you consider that I'm not male!

Posted By Dave Wilson
Thought Employment Tribunals looked at liability for losses and not who was at fault (Criminal Courts).

Think maybe could use Coxall v Goodyear see other thread.