Posted By Sinead Butler
An employee who works on the factory floor (food factory) assembling products was moved to a different job which involved lifting 10lb boxes. She complained that she couldn't do this job due to an operation that she had a year ago. She was moved back to her original job and asked to provide a doctors note for her condition.

The doctors note arrived and on it states that this person cannot work in a cold environment or lift any weights. The person didn't bring any of these facts to the company's attention during her interview or her induction.

We can give this person a job where no lifting is involved but she will be required to work in a cold environment. In light of the information which her doctor has provided, do I keep her on or can I let her go? She is with the company 4 months.

Posted By Kieran J Duignan
Sinead

You ask: do I keep her on or can I let her go?

If your question is about the legal issues, you are firstly referring to about the employee's rights under the Employment Rights Act 1996. This determines the basis of the contract of employment. If prior to appointment, your company asked the employee, in a way that can be verified, whether there was any medical condition affecting her capability to perform the duties in her contract and she knowingly withheld information, she provided a false basis for the contract, which may be void.

In relation to the risks arising from working in a cold environment,you are also referring to the employee's needs and rights under the Health and Safety at Work, etc. Act 1974 and specifically the Management of Health and Safety at Work Regulations 1999. The employer has a responsibility to safeguard the employee from hazards and, if this isn't possible, it is advisable to inform senior management that this means terminating the contract on those explicit grounds (even if she didn't withhold the information prior to appointment).

Posted By Kieran J Duignan
John is quite right about the relevance of the DDA in the sense that its application should be documented in advance of an appointment.

That is to say, a judgment should be recorded prior to the appointment whether the employer decides that it is in a position to make 'a reasonable adjustment' of the work situation to accommodation people who are at risk from exposure to higher levels of heat or cold than the range commonly experienced in UK work situations.

But the employer is NOT actually obliged to make the adjustment if there is a reasonable economic case that the cost would be unjustified or it is simply not possible for the employee to work without exposure to relatively low temperatures.

The big risk of involving a solicitor is that negotiations are polarised; depending on where the work situation is and the employee's employability for other jobs, it could be more economic and much more effective motivationally to get a sympathetic career consultant to help her find alternative employment p.d.q.

Posted By Sinead Butler
Thanks for all the info so far.

This person wasn't given the company medical questionnaire when she started (the responsible person forgot to do it - another matter!) which would have shown up her previous ill health. It was only pure chance that she moved job and I heard about her. All I asked for was a doctors cert for her not being able to lift and I got a bit more information than I bargained for!!!!

Posted By Peter Longworth
And another thing - was a manual handling assessment done on the job taking into account her capabilities before she was moved?