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#1 Posted : 05 August 2004 09:18:00(UTC)
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Posted By John Harrison Safety footwear is identified in an engineering workshop risk assessment as a necessary protective measure when working in that environment. An employee says they cannot wear safety footwear due to a foot condition. The Company has responded responsibly by taking medical advice and trying to find suitable safety footear from alternative suppliers but without success, the employee still refuses to wear the supplied PPE. Can anyone please explain the legal position if an injury occurs in this scenario and what further action is open to the employer?
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#2 Posted : 05 August 2004 10:18:00(UTC)
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Posted By Paul Leadbetter See the reference to the Farmiloe case under 'Handicapped worker's safety' Paul
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#3 Posted : 05 August 2004 11:38:00(UTC)
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Posted By Neil Pearson Paul, does that case apply here? The difference I'm thinking of is the person's choice in the matter. My understanding (definitely open to argument or correction) is that if (a) the employer has taken all reasonable steps short of sacking, and (b) only the employee concerned is at risk, then there is no duty to sack the employee who refuses to wear PPE. I can't remember offhand the title of the case but there is a classic one relating to a worker in a foundry who refused foot protection, eventually burned his foot and sued his employer. Also a recent major stress case illustrated a similar point I think.
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#4 Posted : 05 August 2004 11:44:00(UTC)
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Posted By Mark Bywater John, You must follow your obligations under H&S first and foremost. If after all your good work to source suitable alternative footwear has failed, there is a case for finding suitable alternative employment within your organisation for this person. However this is not always possible and ultimately you may find that you have to release the employee to "protect" him from the hazards in the workshop. Not a great scenario for you or the employee, but you must ensure that every avenue is explored before you go down the dismissal route. It might be fair to the employee to explain that this may eventually be the outcome if he cannot wear the PPE or be re-deployed. Regards, Mark
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#5 Posted : 05 August 2004 12:09:00(UTC)
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Posted By John Harrison Paul, Neil, Thanks for your responses and the alert to the Farmiloe case. Having now read the case I saw the disability situation as just an additional complication where there would be things like the DDA to consider and there would be a higher level of duty of care. The Tribunal interpretaion of the law agreed with the LA Officer and confirms my own understanding i.e. the PPE Regulations are a statutory provision under HASAWA 74 and under the regulations the employer must assess the risk, provide If necessary (as a last resort) suitable PPE, inform and train etc. Employees must wear it and employers must make sure it is worn. As far as I can see there is no personal choice in the matter. There would of course have to be all necessary reasonable steps taken to resolve any wearing problems and any dismissal action would have to be be considered under employment law as well as H & S law.
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#6 Posted : 05 August 2004 12:54:00(UTC)
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Posted By Alec Wood The fact that it is only he who is at risk is irrelevant in relation to your duty of care towards him. Just go back over what you have done so far, if all the avenues have been tried then maybe the employee needs to become fully aware of the consequences. The misconception that there is any element of choice in the use of PPE is a common one. Alec Wood Samsung Electronics
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#7 Posted : 05 August 2004 13:27:00(UTC)
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Posted By Bill Elliott John, You say the gentleman refuses to wear the PPE but not the reason why. Does the PPE not fit properly, is it uncomfortable, does make his foot condition worse. The reason I ask is I had a very similar situation a couple of years ago that ended up with the employer forking out £350 for a pair of shoes to be made to fit the gent concerned. I took independant advice at the time and that was the upshot of it - if your assessment has indicated the need, then the onus is on the employer to provide it - then as long as it fits properly, minimises the risk it was designed to, is in good condition etc etc. the employee is obliged to wear it. It shall not be "suitable" however if it does not take account of the state of health of the person who may wear it. We ended up going to an Orthotist for a bespoke pair of shoes - which were subsequently issued to the gent - who promptly left our employ the following month!!
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#8 Posted : 05 August 2004 19:21:00(UTC)
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Posted By Laurie Is there a medical certificate? Laurie
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#9 Posted : 06 August 2004 08:25:00(UTC)
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Posted By John Harrison Laurie, There was a certificate covering absence when the condition was first diagnosed but now he is back at work it is an ongoing problem he has to manage. John
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#10 Posted : 06 August 2004 09:18:00(UTC)
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Posted By fats van den raad This problem is one that can end up in a real mess if not handled correctly. Not being sexist at all, but any one who ever had to introduce a footwear policy in an environment of female employees can count themselves very lucky if they havn't come across this problem. One of the main problems is controlling the costs. One lady will report a problem with a specific type of shoe, you deal with it by finding a suitable shoe that is wider fitting, or in some other way accomodates her particular problem (and is normally quite more expensive), and before you know it you have a queue in front of your office of ladies who now claim to have a similar problem. Asking for a medical certificate is not always the answer because the doctors are very unlikely to say that there is nothing wrong with their feet. If you are a SME, you do not always have the services of a company doctor available. Incidently, if someone out there has been successfull in finding a ladies safety shoe that effectively addresses the problem of accomodating corns, bunyons, etc. please let me know.
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#11 Posted : 06 August 2004 09:49:00(UTC)
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Posted By Neil Pearson I strongly suggest using a proper occupational health service to advise. Most occ health companies can be engaged case-by-case and they can review the condition and advise what action to take. Ask them to advise what the condition is (if the person agrees to disclosure), if it really affects use of the PPE, and if so, what solutions you should consider. If you'd like suggestions for good occ health advisors, email me.
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#12 Posted : 06 August 2004 10:46:00(UTC)
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Posted By John Harrison It's clearly a very common problem across industry and commerce. Just producing a medical certificate I agree is not the whole answer because GP's often do not have sufficient occupational health knowledge and fail repeatedly to provide a clear diagnosis on which one can act. I have on several occasions sent employees back to their GP to ask for clear information on the declared condition so that we can look for a suitable solution, claims of pain in hands, wrists, arms, necks, backs etc. from DSE work are a classic example. Without a proper diagnosis a workplace 'remedy' may end up making things worse. As a result of these postings we have tightened up our policy and rules on PPE wearing, I found the Farmiloe case very useful in this respect.
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#13 Posted : 06 August 2004 11:02:00(UTC)
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Posted By David J. Hi, Whilst not medical. We had a problem with a lady working in landscaping as a supervisor. Her assertion being a size 3 was too small and a size 3.5 too big. The real problem was her view of her self in that she came to work in designer clothes and we suspect thought we should get similar (armani or nike perhaps), safety boots. Attempts to resolve this by her line manager proved fruitless as she continued with the assertions about the problem with the fit of the boots. End result it was clearly and concisely explained to her that we had legally binding duties under H&S and equally she had duties under legislation re the protection of her H&S and that failure to resolve this issue would mean re-deployment or a termination of employment. She now appears to be happy with the fit of the boots! In effect strong management of the issue was the only way to resolve it.
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