Posted By Melanie Torrance
To cut a long story short:

Kitchen assistant (KA) breaks wrist in a non-work related accident and has metal plate inserted. Has been unable to work for several months. Now wishes to return to work, so employer has a job chat with her and KA says that she cannot carry out her full range of normal duties as her wrist would not hold out for a whole day. Employer offers her a waitressing job instead and puts this in writing. KA changes mind and says that instead of being a strain, her duties would be good exercise for her wrist and now wants to return to her normal duties, apart from any lifting. No-one else employed in kitchen but Cook, who is pregnant so cannot help with lifting.

Employer doesn't know what to do now. Telephoned ACAS who said it is an H&S matter, although I believe it to be more employment law. Advised employer to carry out risk assessments with KA on all KA's duties to determine whether or not she can perform her job to the satisfaction of the employer.

However, employer is worried that should KA have an accident i.e. cuts her hand due to knife slipping because injured wrist was fatigued, then is employer liable? Probably yes, because employer allowed KA to carry out these tasks when it was reasonably foreseeable that she could injure herself.

Help! Employer is not me, but I have been asked for advice on this situation.

Posted By Melanie Torrance
That did cross my mind also. The employer feels that it would be unfair to divert people from their existing jobs to carry out the lifting etc which the KA is now unable to do, but the DDA may deem it necessary.

Posted By Jonathan Breeze
Melanie,

If it is a Risk Assessment that has shown the that the kitchen assistant cannot complete the role, then I can see why ACAS are saying 'health & safety'.

But what you said was that the individual had claimed they couldn't complete the role and then changed their mind.

Perhaps you need to investigate that a bit more and possibly even get a medical opinion as part of the Risk Assessment.

No answers there I'm afraid, but you definitely need to investigate a bit more.

I have no idea how Johns point re DDA would alter the process, but suspect it would require reasonable modifications to allow the individual to do the job.

I also suspect you are going to have to discuss this in detail with your HR department as well.

Posted By Melanie Torrance
Just to put the business into context - it is a cafe in a small town. ACAS have been next to useless. Where else can the employer get info from? Should I point her in the direction of EMAS? I think what she really wants to know is, having offered the person alternative employment, can she make her redundant as she has refused the alternative employment and said that she cannot do the full range of tasks required of her in her original KA job.

Posted By Neil Pearson
As has been suggested above, and whatever your friend's real wish for this employee, the first step should be an occupaitonal health practitioner. They advise on what work the person should undertake, and if they are fit for employment.

Posted By Stuart Nagle
Melanie.

This appears to be both an HR and H&S issue. HR now, but H&S if you let the person continue until they another accident...in the workplace...

Following the accident the person is unable to perform the duties of her post as her wrist is not sufficiently healed, but wishes to return to work.

The employer has offered, in writing, alternative employment that would enable the person to return to work.

The reason the person cannot perform the task is that heavy lifting of kitchen pots and pans etc cannot be done..... i.e. they can no longer do the job they were employed to do, and the conditions and lifting are part of the job and remain part of the job...

1) If the employee has refused alternative employment the employer I believe has the folowing options;

a) seek a medical opinion from an occupational health advisor - means employee must attend a full medical - employer must meet costs, this gives evidence of employee not being to/or able to undertake tasks.... employer being reasonable to establish if worker fit to undertake job....

b) write to employee and state that no other alternative work available and due to injury (non work related) and if the person wont accept the alternative post he can no longer employ the person, unless has another alternative job they can offer the employee and they take it.

May be able to dispense with their services (this is not a DDA case so there is I think no comeback on the employer) if offered an alternative contract of employment for the other job asking the employee to accept or decline, as the employee is not capable of undertaking the duties for which originally employed as cannot lift - and there are no other persons to assist.... If employee refuses to sign and take the new contract they will effectively make themselves unemployed (check out with employment lawer first though, but I think this is OK under the employment consolidation acts)

2) Lay the employee off until such time as can return to work fully fit (physiotherapy etc). and set a date based on medical advice.

If still unfit - sack as evidence shows unfit to do the job.... employer has been reasonable to hold post open etc.... again check out with employment lawer but I think this is OK to.

3) suffer the inconvenience of having;

a) an employee who cannot do the job, aided by a pregnant worker who's probably putting themself at risk to aid the other, and extra costs of getting additional help in, eventual temp replacement for pregnant worker getting pi**ed off having to carry the other employee who is going to be a liability anyway on the health and safety front now when they try to lift something, drop it and get scalded (which they will do), because the company let them carry on working in a workplace where they should not be due to injured wrist - that employer knew about.... then a H&S claim and more costs.....

backbone required here.... I know its awkward and not nice but its got to be dealt with....

Stuart

Posted By David J Bristow
Melanie

With regards to comments about DDA.

There are certain criteria laid down as to what the day-to-day activities are and whether a person can perform these activities before a person can be classed as being disabled or having a disability, because they are adversely affected.

I have not got the full list to hand and am going off memory - but things like, can you lift a kettle to make a cup of tea - can you lift a pan from the stove to the sink – can you wash yourself etc etc.

I would doubt whether this injury would be classed as having "A SIGNIFICANT and ADVERSE EFFECT" on this person’s day-to-day living and therefore they would be precluded from the act.

I will go out on a limb here (pardon the pun) and state that in order to be classed as being disabled, the criteria does not take into affect whether you are able to undertake one job or another in the workplace, it is concerned merely with home life and getting around in general.

Only when your classed as having a disablement under the terms of the act are you then covered at work in that you cannot be discriminated against for reasons of your disability.

Just out of interest – people who are terminally ill from cancer but who wish to work are not covered by the DDA act –Changes to the act that will come later this year will redress this and will also include HIV and MS whether symptoms are present or not.

After making the above statement – you have to, as has been suggested, undertake a risk assessment, however, in order to reach a proper assessment you may need to take advice from an Occupational Health Doctor or indeed seek KA’s permission to write to her/his GP.

Hope this helps you.

Regards



David B