Rank: Forum user 
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Have an employee, who is sensitive to some of the chemicals in the Warehouse. As he is a Warehouse Operative, we cant place him anywhere else to work, were he wont come into contact with certain chemicals.
My question is, where do you stand, if a person is not suited (lazy term, but cant think of any other way than labelling it) to the work environment???
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Rank: Super forum user
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Change the work environment.
From your post, it seems that contamination of the workplace with chemicals is the cause of the employees problems. if so, it is unlikely that a single employee is being affected, maybe that employee is the first, or the first to complain?
As for getting rid of the employee....that should be fairly easy in the "relaxed regulatory regime" we "enjoy" now.
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Rank: Super forum user
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You state that he is sensitive to 'some of the chemicals in the warehouse'. What form does this reaction take and has it been medically confirmed? Have you also checked to what extent and to what he is being exposed? Once you have this information then you can make a decision based on real facts as to whether the sensitivity is genuine, what action you need to take and whether you need to consider the potential for reactions in other people.
Chris
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Rank: Forum user
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JohnMurray wrote:Change the work environment.
From your post, it seems that contamination of the workplace with chemicals is the cause of the employees problems. if so, it is unlikely that a single employee is being affected, maybe that employee is the first, or the first to complain?
As for getting rid of the employee....that should be fairly easy in the "relaxed regulatory regime" we "enjoy" now. Can't change the Environment...apologies, it isn't a chemical, but a powder (he didn't have direct contact with the powder, so must have breathed it in)...he is the only one with an issue, so we've tried to move him around the warehouse, but the powder in question, is used throughout
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Rank: Super forum user
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jon joe wrote:JohnMurray wrote:Change the work environment.
From your post, it seems that contamination of the workplace with chemicals is the cause of the employees problems. if so, it is unlikely that a single employee is being affected, maybe that employee is the first, or the first to complain?
As for getting rid of the employee....that should be fairly easy in the "relaxed regulatory regime" we "enjoy" now. Can't change the Environment...apologies, it isn't a chemical, but a powder (he didn't have direct contact with the powder, so must have breathed it in)...he is the only one with an issue, so we've tried to move him around the warehouse, but the powder in question, is used throughout He's the only one with the "issue", at the moment. What. Is. The. Powder. And what/why is it used.
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jon joe wrote:(he didn't have direct contact with the powder, so must have breathed it in). That comment (if correct) is quite alarming. Are you aware (any) dusts have a legal maximum? As John Murray says what about all the other staff?
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Also you could look at PPE if all other opitions cannot eliminate the problem.
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Rank: Forum user
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JohnMurray wrote:jon joe wrote:JohnMurray wrote:Change the work environment.
From your post, it seems that contamination of the workplace with chemicals is the cause of the employees problems. if so, it is unlikely that a single employee is being affected, maybe that employee is the first, or the first to complain?
As for getting rid of the employee....that should be fairly easy in the "relaxed regulatory regime" we "enjoy" now. Can't change the Environment...apologies, it isn't a chemical, but a powder (he didn't have direct contact with the powder, so must have breathed it in)...he is the only one with an issue, so we've tried to move him around the warehouse, but the powder in question, is used throughout He's the only one with the "issue", at the moment. What. Is. The. Powder. And what/why is it used. this powder (which I don't want to name), has been used for over a year. The injured party has asthma, and previous when he reported having an issue, we provide extra PPE, and tried to rotate his work activities to keep him away for the powder...problem is, we can't as the powder is being used throughout the warehouse...We have sent him for patch testing...and he has already been to seen his doctor on several occasions, who has said he is sensitive to the allergens in the air....this is a very lazy statement, and is down to inexperience (hence why im asking for advice on here), but what do you do if an employee isn't suited for the working activity???
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Rank: Super forum user
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I really think you ought to view this individual's reaction as an alarm bell for something far more serious to your company and all of its employees.
You need to get an expert to monitor and measure the amount of dust in the air ASAP.
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Rank: Super forum user
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Was he employed before the introduction of the powder, if not did you have a robust medical in place or was the question about breathing problems asked at interview etc.
I think you if you get shut of him after he has been sensitised by the dust then you will probibly have a case brought against you. You may already have one anyway.
Does the powder appear in everyday items, that he could be sensitised to now?
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And there are occasions where people may have to be made redundant [a Goodyear employment case is a good example] where the company has done all that is reasonable yet a person is still exposed/reacting etc. so give HR and the line managers info and then let them make decisions
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Presumably you have a safety data sheet for the powder. Is anything in it classified as a sensitiser (R43/H317). If so, you need to review how you are controlling it to ensure that your employee, and others, are not being exposed, as otherwise you are in a very difficult situation. However, de Groot's book on patch testing lists some 4350 sensitisers, most of which are not so classified and thus will not appear on the SDS. I have copy of de Groot's book so if you wish to contact me off the forum I can look the chemical up to see if it is included.
Chris
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Rank: Super forum user
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I'm going to change the direction of this thread and try to answer the OP's question, first I will declare that I agree wholeheartedly with all the above posts.
If a person is not able to conduct his/her duties then the employer must make reasonable adjustments to the workplace to keep them employed. If the employer cannot make any reasonable adjustment and the person is still incapable of conducting their tasks then they may be dismissed on capability grounds.
However, the Equality Act must be followed to the letter for the dismissal to be legal (HR Stuff).
Note to the OP: If the employee was employed before you made the changes to the workplace i.e. before you introduced the powder, and there was no consultation or consideration to the workers health due to the change in their environment, you may be on stick grounds to dismiss this person. Therefore, all the above advice is helpful.
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I don't understand the comment that the powder is 'used' in the warehouse. Normally goods would just be stored and transported in a warehouse. Is the powder not properly contained in its packaging?
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A "nameless" powder, "in use" for the last year in a warehousing environment.
A known asthmatic experiencing difficulties in the presence of a possible trigger.
Was an actual COSHH assessment undertaken before the introduction of the product (you haven't said)?
Is it the most cost effective product for the purpose (a financial reason to bump the employee)?
What is its purpose? - we now have the Biocidal Products Regulation in force limiting the active substances available within the EU and in relation to specific applications
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Rank: Super forum user
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A "nameless" powder, "in use" for the last year in a warehousing environment.
A known asthmatic experiencing difficulties in the presence of a possible trigger.
Was an actual COSHH assessment undertaken before the introduction of the product (you haven't said)?
Is it the most cost effective product for the purpose (a financial reason to bump the employee)?
What is its purpose? - we now have the Biocidal Products Regulation in force limiting the active substances available within the EU and in relation to specific applications
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Rank: Super forum user 
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Hi JonJoe,
I seem to recall from previous posts that you are involved in feed mills of some make or description; from my experience and as others have said what powder are you 'using' in the warehouse? In tut mill yes - but not in warehouse?
Is it pest control powder?
Grain dust?
Minerals or vitamins added as supplements?
What are you going to do when the next operative develops an allergy - get rid of them too?
Without making accusations I think we are only getting half the story here and as such we cannot offer much help other than carry out a coshh assessment and then go from there?
Stu
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Does not want to name the "powder" causing the employee problems.
Presumably the employee would know it, or maybe it is an "employment secret"?
Maybe even an organophosphate to control fungus etc...mind you, looking at the [large] variety of compounds used to control pests etc during storage..it reads like a who's-who of what you should not breath ever....
And your problems may get even worse, once sensitised any subsequent reaction may be rapidly fatal.
And just because the employee is already asthmatic, does not mean others there are not, or that they may not develop an asthmatic reaction to the "substance".
Your silence about "the powder" speaks volumes......
No point is asking for advice about "the powder", without stating its content...mind you, you only seem interested in getting rid of a problem, or a person with a problem you are making worse.
Fortunately, there are loads of solicitors that will work on a percentage of the take.....
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Rank: Super forum user
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Has his doctor given a written statement that his problem is due to exposure at work? If so have you reported this under RIDDOR as is your legal responsibility?
What will you do if the patch testing does show a genuine allergic reaction to the powder? You will have to report this to the HSE. You will also have to take action to prevent other employees or anyone else being exposed to a sensitising chemical.
No-one with the required expertise can give you any advice on this unless they know what the powder is so given the potential consequences I believe you need to get someone such as an occupational hygienist to take a look at this.
Chris
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JohnMurray wrote:Does not want to name the "powder" causing the employee problems.
Presumably the employee would know it, or maybe it is an "employment secret"?
Maybe even an organophosphate to control fungus etc...mind you, looking at the [large] variety of compounds used to control pests etc during storage..it reads like a who's-who of what you should not breath ever....
And your problems may get even worse, once sensitised any subsequent reaction may be rapidly fatal.
And just because the employee is already asthmatic, does not mean others there are not, or that they may not develop an asthmatic reaction to the "substance".
Your silence about "the powder" speaks volumes......
No point is asking for advice about "the powder", without stating its content...mind you, you only seem interested in getting rid of a problem, or a person with a problem you are making worse.
Fortunately, there are loads of solicitors that will work on a percentage of the take..... my actualy question was regarding whether If all options have been exhausted, can an employee be dismissed if the work environment is unhealthy for them....'your silence speaks volumes', I don't want to plaster my Companies name etc on this site...keep your negative assumptions to yourself...you think im only interested in getting rid of someone, when you haven't a clue about the case, so keep quiet
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Hi This is a very difficult situation for a safety person to deal with. So I am sympathetic. Making owners/senior managers understand about COSHH and the duties around it can be hard. If you have not had a proper assessment of the powder carried out you should do this, or if you are not experienced, get an expert in. You should also get proper Occy health advice on this. You will probably find that you will need to take action to stay with in the law. If the "powder" is a know asthmagen or your COSHH assessment or Occy Health advice states it is, then apart from dealing with this one person, you may have to look at further protection for all and probably health monitoring. The monitoring will not be dependent upon EH40 levels either. Have a look at the HSE website as well. http://www.hse.gov.uk/asthma/Ian
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chris.packham wrote:Has his doctor given a written statement that his problem is due to exposure at work? If so have you reported this under RIDDOR as is your legal responsibility?
What will you do if the patch testing does show a genuine allergic reaction to the powder? You will have to report this to the HSE. You will also have to take action to prevent other employees or anyone else being exposed to a sensitising chemical.
No-one with the required expertise can give you any advice on this unless they know what the powder is so given the potential consequences I believe you need to get someone such as an occupational hygienist to take a look at this.
Chris RIDDOR was reported at the time, and we couldn't really specify exactly what the powder was, but we have a pretty good idea...The power is risk assessed on its own, and this is validated by an external body...At the minute, we have an external consultant in to provide advice...but was curious more than anything, regarding what happens when an employee is in an environment which causes harm to him...the powder has its COSHH etc, and PPE are provide and enforced, especially dealing with this powder, but person in questions took an reaction...We also had health surveillance completed the month prior, and his tests were all fine...Dust monitoring etc have came back satisfactory...although that isn't to say dust extractors work perfectly all of the time..
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"Considering dismissing an employee Dismissal is a last resort and you should consider as many ways as possible to help the employee back to work, including: getting a medical report from their GP with the employee’s permission - they have the right to see the report before you do arranging an occupational health assessment work out whether or not they’re disabled and make any reasonable adjustments to help them do their job If the employee can’t do their job because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them, even if they’re disabled" https://www.gov.uk/dismi...ismissals-due-to-illness
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I would argue that its not his/her asthma that is the problem - its his/her allergic or other reaction to a substance that you cannot control in your workplace?
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I do hope the guy is in a union, or other trade association. Or maybe has a decent household policy that covers legal costs....
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stuie wrote:I would argue that its not his/her asthma that is the problem - its his/her allergic or other reaction to a substance that you cannot control in your workplace? Agree with the above, you can have irritant induced asthma or work aggrevated asthma, not caused by allergy or immune response (which seems to be a lot of the focus of the previous comments). Whilst the diagnosis of "work related" asthma is not helpful in assigning a cause, the problem still remains the same = removing the employee from the exposure - either controlling the dust, or relocate the employee or find alternative work or alternative employment. If an blood IgE or similarly accurate test (im not too keen on serial patch testing for occ. asthma) does indicate sensitisation, then (amongst other follow-on actions to protect the remaining workforce) termination is most likely the required course of action, but only IF, exposure cannot be guarenteed to be prevented - as it may result in a life threatening reaction
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Rank: Super forum user
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stuie wrote:I would argue that its not his/her asthma that is the problem - its his/her allergic or other reaction to a substance that you cannot control in your workplace? For all the talk of "PPE", the problem seems to be either cannot control, or does not want to control; or maybe not allowed to control?
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Rank: Super forum user
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This thread is very bizarre!
So… this is obviously an issue under COSHH as this mysterious powder which you cannot mention by name is clearly a substance harmful to human health and so you must assess the risk associated with its use. Note that you do not COSHH assess the substance, you risk assess the process involving the substance (which is why those generic software packages for managing COSHH are so useless).
Having assessed the risk, you must come up with suitable controls for dealing with the risk you have identified. This process can be applied successfully, to any harmful substance from flour dust to chemical warfare agents, given the will to do it properly. If you cannot manage the substance safely (ie at no risk to health) then really you should not be in the business of working with it.
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Rank: Super forum user
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A Kurdziel wrote: If you cannot manage the substance safely (ie at no risk to health) then really you should not be in the business of working with it.
That is a very good point.
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Rank: Super forum user
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Just sack anyone that has a problem with the substance - the problem goes away then. Until the next person suffers and so the cycle starts again.
Much better than actually managing risk and keeping people safe.
This is my last post on this thread as it is infuriating me.
Stuart
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Rank: Super forum user
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Warehousing infers distribution ergo a wider population to be affected over and above direct employees regardless of your dust controls.
Possible scenario: asthmatic driver enters premises to load, is exposed to this nameless agent and has an attack behind the wheel just as your loved one(s) car passes in front of his truck.
Gory? Far-fetched? Or the conclusion of a future coroner's court?
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Rank: Super forum user
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Warehousing infers distribution ergo a wider population to be affected over and above direct employees regardless of your dust controls.
Possible scenario: asthmatic driver enters premises to load, is exposed to this nameless agent and has an attack behind the wheel just as your loved one(s) car passes in front of his truck.
Gory? Far-fetched? Or the conclusion of a future coroner's court?
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Rank: Super forum user 
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As you can see OSH are focused on questioning and challenging the OSH factors rather than answering your original question. You may or may not have general OSH issues; we really cannot be sure with the information you have provided. Whichever is the answer I am not at all sure that we should be projecting opinions that challenge both your management and motives in this matter based on the limited and somewhat confusing information you have provided. I think you should be seeking advice from HR not OSH. Try looking here www.cipd.co.uk. You can register for free as a non member and look at a wealth of info and guidance on people management and employment law etc
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So you "couldn't really specify what the powder was" when submitting the RIDDOR but have a "fair idea". Is this because there is a mixture of substances rather than one and that in combination, it could cause a reaction? Has the powder been chemically analysed so it CAN be properly assessed as the risks of each property addressed?
Is it used during a process at a particular location or as a by-product of a process and again at one location? Could this area be sectioned off with local ventilation and a derobing / shower area be installed so those working in direct contact don't then spread the powder to other areas on shoes / clothing etc? (similar to what is undertaken in nuclear power stations when entering areas where "nasty substances" are employed)?
If it's throughout the building, what cleaning systems are in place for it's removal? (thus preventing little heaps of the stuff from settling...ready to fly into the air when there is any sort of air movement). Is this adequate and what about the person(s) employed to clean this - are the employed in-house or externally through a cleaning contractor - do they wear PPE / are they aware of the potential risk to their health? Is any company that provides staff to your organisation aware of the risks either? While the scenario of the heart attack may seem far fetched, if you have a known issue and haven't warned not only your own staff but also contractors / visitors to the premises you could be at risk for more than one compensation claim...which may go back to when the company decided to introduce the powder into the premises. That could potentially result in the company going into administration from both fines, compensation pay-outs, loss of revenue (sales being cancelled following bad publicity).
Just because you have ONE member of staff that has presented does not mean that by giving that person a golden handshake to leave the problem will disappear. This is much bigger than that. Whoever done your COSHH assessment has either not been given the full story or at the very least needs to re-assess and find out EXACTLY what the "powder" is he or she is reporting on!
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Rank: Super forum user
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Melrose80086 wrote:So you "couldn't really specify what the powder was" when submitting the RIDDOR but have a "fair idea". Is this because there is a mixture of substances rather than one and that in combination, it could cause a reaction? Has the powder been chemically analysed so it CAN be properly assessed as the risks of each property addressed?
Is it used during a process at a particular location or as a by-product of a process and again at one location? Could this area be sectioned off with local ventilation and a derobing / shower area be installed so those working in direct contact don't then spread the powder to other areas on shoes / clothing etc? (similar to what is undertaken in nuclear power stations when entering areas where "nasty substances" are employed)?
He only wants to know how, if possible, to get rid of the troublesome worker. Probably, also, whether any grief will result from sacking the worker. H&S is not the issue here.
If it's throughout the building, what cleaning systems are in place for it's removal? (thus preventing little heaps of the stuff from settling...ready to fly into the air when there is any sort of air movement). Is this adequate and what about the person(s) employed to clean this - are the employed in-house or externally through a cleaning contractor - do they wear PPE / are they aware of the potential risk to their health? Is any company that provides staff to your organisation aware of the risks either? While the scenario of the heart attack may seem far fetched, if you have a known issue and haven't warned not only your own staff but also contractors / visitors to the premises you could be at risk for more than one compensation claim...which may go back to when the company decided to introduce the powder into the premises. That could potentially result in the company going into administration from both fines, compensation pay-outs, loss of revenue (sales being cancelled following bad publicity).
Just because you have ONE member of staff that has presented does not mean that by giving that person a golden handshake to leave the problem will disappear. This is much bigger than that. Whoever done your COSHH assessment has either not been given the full story or at the very least needs to re-assess and find out EXACTLY what the "powder" is he or she is reporting on!
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