Rank: Guest 
|
Posted By Mark Mace
i currently have an employee who operates a large machine that is inherently dangerous, after fitting numerous guards to the machine and attempting to retrain the employee in question, he continues to have a moderate amount of accidents some bordering on the serious (all covered in training on how to avoid these incidents.
My problem is that if i move him to a safer job for his aptitude on the basis of past accidents, i think we will end up with a law suit ( he has sued for every accident he has had in the past).
Has any one had any experience with this type of problem and how was it solved.
Please note we are a smallish family concern and donot have the resources to employ a HR specialist.
Regards
M A Mace
|
|
|
|
|
|
Rank: Guest
|
Posted By Jason McQueen
Just curious but on what grounds could he sue you for changing his job? Most people are employed on general contracts which deem they will perform any reasonable task that the company sees appropriate.
I suppose you could use the argument that in order to meet your own legal obligations (sect 2 HSWA for example) you need to take all reasonable steps to prevent injury to the individual. You have identified that the risk of injury to the individual in his current role is foreseeable and therefore to remove the risk it is necessary to remove the individual to a different task.
You've already stated that you've taken reasonable steps to ensure the safety of the machinery, provided him with sufficient training and instruction to do the taks and so it seems the logical next step. At the end of the day I find it hard to believe that any court would convict you on the basis that your moving someone to prevent them from being injured.
However, I would also look at your staff selection process. Clearly this person isnt in the right job for him (on the basis of the info supplied) and so it begs the question of how he got the job in the first place. Round pegs and square holes spring to mind. Also, its common practice to place staff in new roles on a six month probation period to ensure that they can do the job correctly, was this not the case?
If so and he proved himself competent over the probation period then you need to look at what has changed to lead to his lack of performance now e.g. personel issues, health problems etc.
|
|
|
|
|
|
Rank: Guest
|
Posted By Philip McAleenan
Mark,
As an employer you are obligated to ensure that those who do work for you are competent throughout their employment. Your employee has a corresponding obligation to be competent and to maintain his competence throughout his employment. You are correctly providing the necessary training to ensure that he is able to meet the latter. If not already done, ask your trainer to conduct a competence assessment on all those who have under taken training and to provide you with the results. Advise your employees that those who fail to demonstrate the requisite standard of competence (tell them what that is) will have to re-take the program or risk either re-deployment to another job or possibly face dismissal if there is no alternative job.
A proviso though; ensure that you have fully investigated the accidents he has had to establish exactly what the causes have been. Is the plant in good order with all the mechanical safeguards in place and working effectively? Are there operating procedures for the process he is involved in? Have these been reviewed after each accident to ensure that they are sufficient for the safe operation of the plant? Is there adequate supervision to ensure that they are being adhered to?
Regards, Philip
|
|
|
|
|
|
Rank: Guest
|
Posted By Stephen J W Clegg.
Hi Mark, you say the employee is still having accidents after the guards have been fitted. Is this solely because of the attitude/actions of the individual or that your guards are ineffective?
You have a duty under the Act to ensure the Health, Safety and Welfare of employees etc…
If your machine is as ‘safe’ to use as it can be (all things considered i.e. AFARP) and your employee is still having accidents, does this not demonstrate their lack of understanding/competency for using that machine and therefore should not be allowed near it?
I am sure someone with more knowledge on HR issues will add the legal angle to this but if re-training for ‘safer job’ is not possible, is this person suitable to be in your employment? Check your recruitment process/person/job spec. I am not suggesting termination of employment but a decision has to be made (hence the reason for your posting…) before a cut finger ends up being an amputated limb.
You say by moving him to a safer job you could face a lawsuit… by not moving him and allowing a more serious incident to occur, it’s likely you will, together with some enforcement action for not ensuring the above (paragraph 2)... and especially because you are aware of the problem and failed to do enough?
Don’t forget, if you move him to a safer job whilst he’s recovering from his injuries, if it’s for over three days you may need to report it under RIDDOR.
What machine is it exactly?
Steve.
|
|
|
|
|
|
Rank: Guest
|
Posted By Kieran J Duignan
Mark
Previous contributors have offered probably as many useful comments as possible without detailed knowledge of the situation you describe.
From your account, you risk being sued either for unsafe work practices or, for more money, for breach of contract or constructive dismissal (under the Employment Rights Act 1996) -r under some other unexpected heading such as some form of 'unfair discrimination'. 'Being sued' is well short of being convicted: your allegedly errant employee will need evidence to persuade a tribunal of the validity of a claim.
Without sight of the employee's contract, it's ill-advised to suggest more than recommend you to consult a member of the IOSH who is also a member of the CIPD: ask him/her to inspect available records of the employment of the individual up to now, and to advise on legally legitimate options available to management at this stage.
A good HR/OSH consultant may well identify strengths or weaknesses in your case that accelerate the resolution of the problem, and cover the employer's risks at this stage, sufficiently to justify his/her fee. If you include the loss of management time in dealing with the employee, and apply the lessons learnt to future recruitment/training/safety management, it may well be the most economic way ahead
|
|
|
|
|
|
Rank: Guest
|
Posted By Saracen10
I agree with all of the above comments and would urge you to take some action regarding this issue. As one of the contributers suggested, failure to do something to prevent a more serious injury could have greater consequences than a cut finger...
Good luck with this!
|
|
|
|
|
|
Rank: Guest
|
Posted By Mark Mace
answers to some of the questions asked
1) the machine is a hand fed steel shear, capable of cutting steel beams up to 6 inches in thickness.
2) the employee was employed by the company originally as a burner(oxyactylene torch used to cut scrap steel) and then moved to this machine when it was installed (when i dont know no one remebers and there are no records).
3) unfortunately for me my employer does not issue contracts. (i am aware there are some legal implications with this). They are also ignoring most pieces of legislation that require them to act on any employment issues (why because it might cost something and they are either unable or unwilling to understand the benefits of proper written procedures).
4) i only recently started this role in the company.(wish i hadn't)
5) previous accidents have not been investigated properly or at all by the prior management team.
6) there are no staff records to prove he was originally trained (prior management again), although every one asked about training insists it was done..
7) Apparently i was only employed because the companies insurers refused to re-insure them until a suitably competent person had installed a Health and safety system (this was done by a consultant company) and appointed some one to manage it.
Obviously my main concern is the employees health & Safety, i want to move him to a different task, but all i get from the management is worries of unfair dismisal claims and comments of "if it costs us nothing OK but if it does?".
I honestly think i need to find another job with a company that does want to do the right thing for the right reasons.
Please let me thankyou all for your responses they have been very helpfull, with the assisstance of your advice i am about to write to the managing director to inform him of
A) the employee must be moved to more suitable work.Ensuring that the employee is kept fully informed of the reasons and neccesity of it.
B) the company must put into place contracts of employment etc, to help prevent this type of issue ever arising again.
C) review all senior management as to there suitability for running his company.
d) review all training for all employees.
I might not have a job after this but at least i will have tried.
Regards
|
|
|
|
|
|
Rank: Guest
|
Posted By Kieran J Duignan
Mark
You've done a good job by analysing your situation and sharing your analysis (feedback on the web discussion validates the efforts of contributors).
From what you now say, it appears that the root of the muddle is that few, if any, in your company have a valid contract of employment.
While your frustration is understandable, it is perhaps worth bearing in mind that you risk allowing senior management to overlook the quality of your analysis to the extent that you offer it in a blaming way. By offering it as a set of options, highlighting those you recommend, you can both make clear what needs to be done and avoid appearing to attack directly.
One of the most skilful and effective HR managers I've known in 20+ years as a HR/OSH consultant was calm and clear in his botoom line to senior management inclined to avoid their responsibilities: 'You have the right to do as you like,as long as you are prepared to pay for the consequences. I'm simply making your options clear.' His view was normally the one that prevailed when push came to shove especially where the trades unions were involved (as it often did)
|
|
|
|
|
|
Rank: Guest
|
Posted By Mark Mace
thanks kieran i will try any thing once
regards
|
|
|
|
|
|
Rank: Guest
|
Posted By gham
I know it's a bit sinister but have you concidered that given the management's attitude towards the safety of the employees or their disregard for legislations might the employee be a serial claimant, purely because he knows he cant loose.
Have you thought of approaching your insurers given that they have already insitesd in having the management system in place along with a competent person, perhaps they can advise your company how to reduce the cost of their premium, this may have some impact as your employers seem to be cost driven.
Also there are mentions of Unfair dismissal which may be the case if the employee alleges that he was dimissed because of previous claims that he had made, grounds for fair dismissal are:
a reason related to the employee's capability or qualification for the job;
a reason related to the employee's conduct;
redundancy (broadly, this is where the employer's need for employees to do certain work has ceased or diminished or is expected to do so);
a statutory restriction on either the employer or the employee which prevents the employment being continued;
some other substantial reason which could justify the dismissal.
http://www.dti.gov.uk/er...l/unfair-pl712a.htm#fair
Good Luck!
G'
|
|
|
|
|
|
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.