Posted By Aggi Katniak
Morning everyone

We have got an employee who is mentally disabled, which presents itself primarily thru communication problems - can read Ok but speech is slow and difficult. He comprehends what is told him.

For the past 11 years he has worked at our old site, collecting boxes from the rotundas and taking them to the stores area, his role was to assist in keeping the shop floor tidy.

Physical barriers (keypad locked doors) prevented him from entering departments where we had live electricity.

He was also not allowed into the stores area.

Over the past two years the volume of work has decreased significantly resulting in far less for the employee to do. (Staff levels dropped from approx 150 on site to approx 40)

Increased efforts to recycle packaging has further impacted on the amount of work he has had to do.

In an effort to find meaningful and suitable employment for him we engaged an Occupational Psychologist to assess his abilities and identify tasks he could undertake.

The relevant trials on these jobs were then undertaken. He was below average regarding output and became stressed when feeling under pressure to keep up. He required re-training on the jobs each day.

Due to lack of work he has now been at home on full pay for approx 10 weeks.

With the site move we now have to re-assess which jobs he would be capable of doing but require a risk assessment of him by a qualified person to determine -

a) Whether it is safe to have him on site - we have got a completely new factory and Cellular structure of Manufacturing lines now means areas with live electricity are not physically segregated (H&S measures are in place - suitable training, warning lights, emergency stops, physical shields on the racks.)

b) Whether he is capable of performing enough tasks to be able to rotate effectively thru the production areas and that he fully understands the danger areas & is therefore neither a danger to himself or anyone else.

c) Whether he is capable of performing the tasks to the standard required by the company.

His mother has informed us that if we do not find a suitable position for him, she is going to the court with a discrimination against disability case.

Can you please advise whether we have taken the right approach and what else we should be doing.

Thank you.
Aggi

Posted By Aggi Katniak
Thank you Lilian

Our HR Manager is not very helpful and he actually believes this is a H&S case and that a risk assessment will solve all his problems.

Do you have any ideas what records we should produce to make sure we can prove we have covered all options (due diligence)?

Regards
Aggi

Posted By Aggi Katniak
David

Thanks a lot for your response.
What kind of risk assessment should I do though?
The person is at home. It is unsafe in my opinion to let the person on our site. Should I basically review the person's medical conditions (reports produced by the occupational nurse) and check whether we can find any suitable work stand?

Any help will be appreciated.

Aggi

Posted By Linda Westrupp
Aggi
As far as I can see you already have a good start on your risk assessment as you have a report from an Occupational Psychologist. This should give an indication of the employee's capabilities and limitations. It is definitely an HR issue and they should be dealing with it. However, if you need more help it might be an idea to contact the Local Authority Social Services department and ask if they have an employment assistance programme. They might be able to help with expert advice on suitable tasks or if all else fails, may be able to help the employee to obtain suitable employment elsewhere if you make him redundant, (they will also support him and his mother to come to terms with the loss of his job).
I hope this helps
Linda

Posted By Philby'
Aggi,

Inform HR to try 'Access to Work', they are an agency of the DWP....I have had cause to use them in the past and continue to do so...

Their primary function is to get or keep disabled persons in employment. However, this is 'self lead' ie, the staff member has to contact them...the way round this is to act as advocate WITH the employee.

They can advise what is suitable, what provisions may be necessary and feasibility.

I have found them very useful

Philby'

Posted By Aggi Katniak
Hi Bob, where did you get the quote from, definitely not from my posts :)

A.

Posted By Kieran J Duignan
Interesting how Linda recommends that Aggi should 'take a step back' but then absolutely and without qualification insists the his problem is for HR. Take another couples of steps back....

The fact of the matter is that the laws of safety and of fair discrimination make no distinction whatsoeverbetween 'HR' and 'OSH' or any other internal bureaucratic arrangements: Aggi will be at risk of severe criticism by any court it he tries that kind of defence.

As a full member of three relevant professional societies (IOSH, CIPD and BPS), I view the matter as one of how well the employer can safeguard the employee with disabilities against all identified hazards and has communicated the problems clearly to him and his mother,listened attentively to what they have to say and, if necessary, reply in writing item by item.

You can find on Google an interesting case of Farmiloe (the employee) who went as far as the Court of Appeal when his employee sacked him because they couldn't safeguard him against risks of severe psioriasis - even though he himself was willing to tolerate the risks. Because the employer documented the case well, their defence stood firm; there was absolutely no question whether it was a matter for HR, OSH of father (or mother) Christmas - it was up to the employer.

The website of the Disability Rights Commission provide sound guidance on the interface between safety and fair discrimination law: they are supportive to people with disabilities as you might expect but. with the best will in the world,they are not in a position to magically dispel hazards that can't be adequately controlled for a particular employee.

Showing genuine respect for a person with a disability and his/her family takes time and care. At the same time, in my experience in some horrendous settings where employees have been injuried, traumatised and in some instances, killed, you're appreciated to the extent that you combine doing an honest, competent job with showing thoughtful respect (even to HR!)

Aggi, you appear to be on the right lines: document it carefully and negotiate with equal care with the employee and his mother. Then simply be prepared to make a good case to your board and to court if you have to do so; either may be stressful but they're also great learning opportunities.

Posted By Jean
Kieran

As usual excellent impartial constructive advice. Aggi, I've had advice from Kieran before, and found his advice to be useful.

Posted By Lilian McCartney
To Kieran,

It was me that said to take a step back as it sounded like Aggi was getting too personally involved which is very easy to do in these circumstances.

However, to make a sound professional judgement you have to be just that little bit less involved.

When you get too close by stepping back and reviewing what is happening and involving the correct people then the correct decison/actions can be achieved.

Unless Aggi is also HR (and he has indicated that he isn't)I would advise that he doesn't make any HR decisions on his own.

I'm also assuming that Aggi isn't the employer that there is some level of management in place. I would think that the courts would comment on the wrong person making decisions - even if these were the correct ones.

Lilian

Posted By anon1234
Aggi, I think Bob was concerned about the following statemenmt you made:
'Whether it is safe to have him on site - we have got a completely new factory and Cellular structure of Manufacturing lines now means areas with live electricity are not physically segregated (H&S measures are in place - suitable training, warning lights, emergency stops, physical shields on the racks.)' which seems to imply that he could relatively easily come into contact with live electricity. If this is the case then I think this should be addressed as a matter of urgency.

Posted By David J Bristow
Aggi

As Glen has stated in his response, Access to work through the local Jobcentreplus may be able to help (contact your local office and ask to speak to a Disability Employment Adviser in the first instance).

Access to work is there to support people back into work or to consolidate those at work in keeping their job, that is, those persons that meet a certain criteria with either a physical disability, mental impairment or learning difficulties etc etc.

An assessment would be carried out (with your companies input) and an Access consultant. If appropriate a "buddy" could be financed to assist this person with their day to day activities.

Relatives of people with disabilities do tend to get emotional about their sons, daughters etc and quite rightly so. However, it is my opinion that the MHASW takes precedent over the DDA, in that an employer has to take into account the capabilities of the an employee when entrusting a task to that employee.

Companies are encouraged to employ people with disabilities but like the rest of us, they have to be able to "do the job" and do the job safely

A very emotional subject that needs tact and diplomacy and the input of other professionals ( I see the HR department playing only a small part in this process)

Hope this helps.

Regards


David B

Posted By Mike Draper
This may be relevant.

http://www.drc-gb.org/th...ey_county_council_c.aspx

You appear to be doing all the right things Aggi. The main things is to keep talking about what you are doing with the affected person and to consider there views.

Also, depending on where you are in the country, there are a number of projects that can help with making reasonable adjustments to enable continued employment or finding alternative employment if this is not possible.

Posted By jackw.
"A woman? A woman" ye gads does IOSH allow that? What will the chaps in the old mess hall in Bombay think!!!

Ok enough of my mad sense of humour.

Whilst the term "mentally disabled" wouldn't go down to well with the PC mob and to be fair is a bit behind the times, it seems to me that what you are doing is more than "reasonable" in any ones book and lets remember the test in these things is did you act reasonably. if you can re-deploy this guy great, if not then you may have to consider if you can keep him on or let him go. Or should I say your HR department will. Seems like they are ducking and diving this one, for obvious reasons. The old" it wasn't me".. it was that terrible H&S mob comes to mind! On, a hopefully more helpful note, check and see if your LA or some voluntary agency (enable may be one to contact), are involved in any Supported Employment initiatives. They may be able to help settle the person into a new job in your organisation or maybe some alternative one. They have job coaches etc. They come out. break the job down into small manageable tasks re the persons ability to learn, retain etc. and then work them through it. Gradually withdrawing support and letting the person do the job, whilst still in the background to be called upon if any major issues crop up.

Hope this helps.

Cheers happy weekend

Posted By David .J. Minnery
Under the Disability Discrimination Act 1995, Part 1, Disability 1.[1] Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he [or she] has a physical or mental impairment which has a substantial and long-term adverse effect on his [or her] ability to carry out normal day to day activities.

Part II, Employment, Discrimination by Employers, Sections 4-7 [part 5 "justification"]

Section 6 [1],6 [2],6 [3, a-l],6 [4],6 [5],6 [6].6 [7] & 6 [8]

"Reasonable adjustment" please go through the DWP for advice and assistance as your employee with the disability [mental impairment] and his representative also require the best advice on this issue, which is likely to be more important to the employee and his family than to the employer [although not always].

You will be aware of the sensitivities involved in this case, but you also wish to avoid adverse publicity and to do so you will have to obtain the best possible independent advice for the sake of both your company and for the disabled employee.
Have you thought about assisting the employee to find other employment?
I wish both yourself, and the employee concerned well in what is a very difficult matter for all concerned.

Ps. Always remember that disability and disabled persons should never be seen as a health and safety issue, see the person, see the problem, solve the problem, but health and safety issues affect us all, and protection is required by all.

Best Regards

David