We have recently found out that a new starter (apprentice) has a particular condition after an incident. The condition was diagnosed as “Congenital dislocation of the patella” and resulted in the employee dislocating his knee by simply standing still and moving his weight from one leg to another, no other movement than that at the time. He was at height but luckily only approx. 50cm, but still required two people to lift him down, as he could not use the access steps he used to get up.

On looking this up it appears to be a condition which when noticed as a child can have some sort of corrective operation, but I do not believe this was the case and or he still has obvious issues. The job and indeed through the apprenticeship will require him to work at height from ground level to their feet being 3m up. Only light work at highest height (screwdriver type work) but absolutely essential work at height in some degree for say 40% of the time, where another 30% of the time they will be required to kneel down in order to do the job (sorry I’m not at liberty to say the job). The tasks I would not consider to be everyday tasks

We want to do the right thing by the lad but I’m very concerned if they are at height and their knee dislocates again (for no particular reason), that a fall could easily be very serious. The work at height can not be avoided. Currently he refuses to kneel down and if he does get onto the floor, he sits with legs straight out in front but this position also puts him in danger of injury to his legs (really would not be considered good practice by any of you). He currently refuses to do any task that requires kneeling down. There is also potential when working with others that he could potentially hurt them.

As I said we want to do the right thing for him, even if it means ending his contract, but I would like to follow the correct process to give him every chance.  From a learning perspective as much as this particular issue, is the process below correct.

My question: -

• Is the correct process for us to detail out the exact job tasks and working conditions?
• Ask their permission to have an occupational assessment (or can we insist),
• then employ an occupation health advisor to assess them against the job description /requirements as noted above.
• Then for the OH provider to simply tell us that they are fit to do the job, not fit to do the job or can do the job with adaptions.
• Then we either make the adaptions (if required) and carry on if fit or look at ending the contract on the grounds of capability. (we would obviously consider any other openings we had)

It may also be worth noting his doctor has told us that he does not consider the condition to class him as disabled. So I’m not sure if the process would be different if they were disabled either, but worth knowing any difference to the process of evaluation.

Your help on the process would be very much appreciated or direction to any sort of official guidance for employers on this process.

Thanks (Sorry for length of post but trying to give a meaningful description to allow you to possibly help)

Chris

The doctor is by the way wrong; this looks very much like a disability under the Equality Act. See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf for an official description.

I know it's a little late in the day now, but you could maybe have avoided the issue had you asked the person at interview whether they were able to kneel.  Maybe something to consider next time ?

As I'm sure you're already aware, employees with less than 2 years service have very few legal employment rights, but one they do have is if dismissed for discriminatory reasons, so this is the main aspect you'll need to be careful with (if of course you ultimately have no choice but to go down that route).

I would say you're on the right lines with what you're suggesting, and particularly so if you're looking to see if any other roles are suitable and also involving Occ Health in the decision-making process.

So far as guidance goes, perhaps CAB or ACAS might be worthwhile options ? 

Try   https://www.citizensadvice.org.uk/work/discrimination-at-work/common-situations/termination-of-employment-and-disability-discrimination/  OR http://www.acas.org.uk/index.aspx?articleid=1859

In Bristol there's a medical practice in Shirehampton (it has Shirehampton in its name) that provides occ health services.   A previous employer of mine used it and as far as I know all was well with it so unlike some occ health providers I won't dis-recommend it!

Harsh as it may sound, it could be in the apprentice's own interests to change career direction now while they are presumably quite early on in their career.

Does the apprentice attend a college that can offer careers advice?

Thank you A Kurdziel for the link to that document, it has been some time since I have read about this. My first thought was the same, I would have said it was a disability. However, on rereading the information, I would say he could do what they are describing as “normal activities”. It is very borderline which way you could go on that. He could possibly climb a stair to go to bed each night which would be akin to going up a podium / warehouse steps. However, if he falls down the stairs at home that is his issue, where in work we would have a real problem especially now we now of the condition. However, in regard to the situation now whether the Doctor feels there is a disability or not (or us for that matter) does not make any difference to the process we now need to go through (unless someone says differently). I think we need to get a third party in to make an assessment about them with regard to the job role.

Thanks, Kate for that um, not dis recommendation :o) Just love the way you worded it.

KieranD, sadly the first we were told of the condition was after the incident. We like most are very wary about asking for information regarding disabilities or health conditions before we offer someone a job. The lad and his mother see nothing wrong with him doing this type of work.  Even if we had asked about any impairments, I suspect we would not have been told as is their right?

Again, thanks to all for your comments and info, much appreciated. You would have thought there would be some guidance on this process to help employers, but seems not.

Chris