Hi
We have an employee who works in a retail bakery shop who started to suffer epileptic seizures approximately 18 months ago, after not being a sufferer since childhood. The employee was suffering minor seizures which last for a few minutes and normally result in them stopping what they were doing and staring blankly into space. At this time I completed a risk assessment and put in appropriate control measures to protect them and other staff and trained other staff on what action to take when a seizure occurred. The area manager has conducted regular reviews of the assessment since to ensure it is still relevant.
I have now being contact by the area manager who as informed me that the employee’s seizures are now getting worse (more frequent, lasting longer and taking longer for the employee to recover). The employee is in denial and strongly refutes that the condition is worsening to the point where they are becoming very agitated during the assessment reviews. We have strongly suggested that they need to go back to their doctor to check medication etc but they do not want to do this.
We have asked them for permission to contact their doctor which we are still waiting to see if this will be given (not hopeful). I am now going next week to complete a new assessment to ensure the controls in place are sufficient because the area manager and shop manager believe there is a risk the employee may injury themselves or others when making sandwiches (use of knives) or hot drinks.
My question is considering this situation what else can you we do if the employee is so adamant that their condition is not worsening and is unwilling to compromise apart from taking a more disciplinary line. Any thoughts

Have recorded incidents since the initial assessment which is why we are aware of the conditioning worsening. Again getting occuptation health involved is an option but only if they are willing to agree to seeing them, which at present they are not.

The persons reaction is not uncommon and may in part be because they are concerned about their continued employment and ability to retain their driving licence; both very understandable. It is possible that they simply do not know that they have had a seizure, hence their unwillingness to accept that they have.

I suggest that doing nothing is not much of an option. If the person refuses to consent to a medical referral, either through their own GP or Occ Health, then the employer is entitled to take any action that they feel necessary for the protection of the individual and others, based on the information ‘in front of them’.

I have dealt with a few similar cases over the years, treat these people with sensitivity, sit down and speak to them, reassure them etc. If they do lose their licence they can get assistance to and from work through Access to Work.

https://www.epilepsy.org...employment/legal-matters

In the main it is a matter for the individual...in my experience it is all about them coming to terms with the affect it has on their lifestyle..

The link should help both parties to understand the issues from both sides and work toward a reasonable solution..

Just don't go charging in saying it is in a condition of contract to comply..I'm sure you wouldn't.

PM if you need any more..

thanks for all the comments.

Am I the only one slightly worried by the tone of some of what is being said here?

Someone has discovered they have epilepsy and it is getting worse. It's a life changing and sometimes life limiting condition (as in they can't do everything they used to, such as driving). Is it any wonder they are 'in denial'. How about less 'denial' more 'struggling to come to terms with the extent of their condition'.

Yes, it's a situation that needs to be addressed but let's have a little compassion here. No more talk about being in breach of contract etc. Consider how you would want to be treated in such circumstances. I know I'd want a little understanding and compassion.

quote=drpopikoff]It is unfortunate that Occupational Health are refusing to see the person unless they have that person's permission. I thought Occupational Health worked for the company? Or do they work for the individual?

Best of luck, please let us know the outcome.

I can tell you from personal experience these types of illnesses and situations are very difficult to deal with because the person will be very concerned about the possible consequences of a negative medical report. If for example we break our leg and the doctor signs us off for 6 weeks then it's ok because we know we will recover from the break. But in the case you describe the negative report could have far more significant consequences and may cover a lifetime. That can be very very difficult to deal with. There is no easy solution so you just have to do what you think is correct and taking into acount the relevant health and safety laws and our moral duty, but also have some empathy as that may help to overcome barriers and concerns. It can also be difficult for local management and employees to deal with as well, because they also know the consequences.

Regards.

The question asked neither referred to nor implied any 'breach of contract' by the ill employee.

If, and only if, an individual is unable to work due to illness, the relevant employment law concerns 'frustration of contract' which is totally different from 'breach of contract': it simply refers to a contract becoming void in the event that an employee is unable to carry out his/her job. This is not impossible in the event outlined.

John Murray's subjective generalisations based on random threads on this forum would be far, far more credible and constructive if he cited facts of relevant court judgements. On another thread, a summary of a decision by an EAT this week indicates how the doctrine of frustration of contract may at times override an employer's responsibility to make agreed reasonable adjustments to adapt to disability; other judgments have been reached by tribunals, EATs and the Court of Appeal which contradict John's observations and side with the employee's advocates.

The question asked by PGra simply addressed the challenge of options for enabling the employee and employer to address the person's new social identity constructively in designing agreed reasonable adjustments to adapt to disabliity.

My reference to their contractual obligations is not meant as some kind of threat. I had a very similar situation to manage where the person involved was very much in denial & no one had previously tried to make their situation easier, or put the company in a situation where they were addressing the persons concerns and allowing a safe place of work.
I fully explained our duty to him & his manager and that we needed them to work with us.

Make it clear that the persons job is not under threat (hopefully that's the case) & work with them if you can.

I would like to assure you all mine and the company i work for intention was not to get rid of the employee. i had a meeting with the employee yesterday which resulted in them agreeing going to see their gp and allowing us to contact them. this we hope will highlight the progression in her siezures to the gp as we plan to include the reviews we have recorded which will hopefully mean that the gp is more aware and can give appropraite treatment.

Spot on Clairel. IMHO I think that we should sometimes be more person centered in the field of health and safety.

This employee is most likely suffering from absence seizures. They are not 'in denial' as one hall mark of the condition is that they may not be aware the seizures are happening. Often employee's do have some awareness, similar to a deja vu phenomenon, but not always.

Sometimes the corroborating information from other workers is the only hard evidence that someone's seizures are worsening. They should be encouraged to see their GP to facilitate referral to a neurologist (the GP is unlikely to be able to treat this). OH should be involved (but only if the employee consents!).

The issue is what to do if the employee does not engage. In this case the employer will have to manage the sitation as they see fit. I would have significant concerns about this employee working in a kitchen environment on the information you describe. The issue for the employer is that although they may feel compassion for the employee, they also need to meet their H&S duties and balance their duty of care to other employees (these do not always overlap). Ultimately, H&S legislation trumps disability legislation.

Regards,

Mark

Consultant in Occupational Medicine