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Employing someone with a bad back in a Manual Handling environment
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Posted By Paul Parry
I am looking for thoughts !
I won't mention my own views as I dont want to influence anyone but I am interested in what you all think ? The story runs like this:
An employee works in a factory which has a heavy manual handling burden (ALL Tasks).
He suffers from a degenerating back problem with arthritus in his back and hip.
He has had periods off work with back and associated problems, and has also got a restricted weight lifting capability.
The employer now wants to put him back to work in the factory, but only in three areas which still include manual handling. He will be pulling and lifing things and constantly cutting using two pull down saws (Wruld's ?)
What do you all think ?
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Posted By John Murgatroyd
I think the company has a problem.
"heavy manual handling in all tasks"
Whatever happened to mechanical assistance with handling tasks ?
Yep, seems they may soon be having letters from the "claims culture" solicitors.
Now, what was the question: Oh yes, should they be employing someone with a bad back. Who caused the back problem ?
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Posted By Martin Taylor
I should think this is a very clear case. HASAWA requires the employer to ENSURE the health of his employees. Is he doing everything reasonable in this case to prevent aggravation of this employees condition.
A risk assessment (which should consider the individuals involved) would highlight the additional risk involved for this individual.
There is an additional duty of care for vulnerable persons (Civil claims - Stepney Borough COuncil)
Advice to employer - consider duty of HASAW vs Employment rights and consider risk of industrial injury claim vs employment tribunal.
As regards who caused the injury - does it matter?
Martin Taylor
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Posted By Nick Higginson
Paul
In cases such as these, Health & Safety law overrides employment law.
"The Court of Appeal and employment appeal tribunals have both confirmed that an employer has obligations under employment law to consider reasonable adjustments and/or alternative employment. However, when all alternatives have been exhausted, there is an overriding obligation on the employer to comply with health & safety law, which may necessitate dismissal to protect that employee from risks to his health and safety." (Safety & Health Practitioner April 2004).
Relevant case law is Coxall v. Goodyear (2002).
Hope this helps,
Nick
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Posted By Laurie
Agree generally with responses so far, but do bear in mind that if you are going to dismiss the DDA will almost certainly come into play
Laurie
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Posted By Alec Wood
Surely the DDA is also over-ridden by Health & Safety Law.
This is an interesting question though. Personally I would be seeking to find alternative duties. If none could be found then I would have to consider the option of capability dismissal, but in a medium to large organisation I would be surprised if some other solution could not be found. In smaller companies though things are generally much more difficult.
The principles of risk assessment should obviously be applied to any dutites to be assigned to this chap, but in the end the employer cannot give him duties which he knows will aggravate his back condition further.
Alec Wood
Samsung Electronics
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Posted By joseph byrne
there is a law called the incapability law and if a company finds an employee is incapable of carrying out what he was originally employed for then they will use it to dismiss the employee.
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Posted By Laurie
Sorry but I must refer you to the recent case of a Fife Council employee who became unfit for their primary task.
The person concerned applied for something like 100 other positions within the Council but was refused all of them and was eventually sacked.
She won, quite rightly, substantial damages.
If you are going to dismiss, or refuse to employ, someone because of disability you must show that you have attempted to make "reasonable adjustment"
The definition of "reasonable adjustment" is, like "reasonably practicable", something the courts interpret quite strictly.
Laurie
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Posted By Nick Higginson
Please note that in my posting I included disability law in with employment law.
I did make reference to "reasonable adjustments" and "alternative employment". If these are satisfied, dismissal to protect the employee is the only option.
Nick
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Posted By John Webster
Depending on the age of the employee and whether or not there is an appropriate pension scheme, there is another alternative to dismissal - early retirement on ill health grounds.
The Fife ruling confirms that - for the time being - anyone who becomes disabled during their working lives (using the broad DDA definition of disabled) should be redeployed if at all possible (I suppose reasonably practicable will apply).
Unfortunately, it can often be cheaper for a company to carefully fairly dismiss and then wait for the injury compensation claim to be picked up by their insurers after a several year fight.
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Posted By John Murgatroyd
The insurers probably won't fight.
It would seem from the given facts that the company has no regard for the employees.
In any case, most insurers take the easy way out rather than have a case go against them.
They'll likely settle before court and stomach the loss.
Better settle for 20 or 30 thousand than end up with a bill for hundreds of thousands and costs.
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Employing someone with a bad back in a Manual Handling environment
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