Employer negligence

S

Sunshine2015

Registered User
Messages
26
If an employer had someone in a role where lifting bags of laundry was part of the job and provided no manual handling training and the employee is now out with back complaints what recourse does that employee have should she go down the route of not returning to work and taking constructive dismissal case or going down a different route? I have a family member in this situation and she is very stressed employer is not being at all supportive
 
There are 2 issues here, firstly is the health and safety aspect and whether or not the employers have followed their statutory obligations. First port of call should be the HSA and see can they advise. The 2nd issue is that of constructive dismissal

http://www.hsa.ie

Secondly she could perhaps talk to the Citizens advice bureau for advice

Bear in mind, back pain can be difficult to prove and employers are not obliged to hold a position open for someone who physically cannot do the job. Hence, she needs to be 100% certain that the cause of her injury was work and that she is not in a position to return to work. As an exercise, it might help if she documented everything she can recall happening since she first joined the company, including induction training, any H&S training, any sight of H&S statements etc etc. She should also ensure that every discussion she has with her employer is documented.
 
If employee CHOOSES not to return to work, then where is the CONSTRUCTIVE DISMISSAL?
 
Sunshine2015 said:
If an employer had someone in a role where lifting bags of laundry was part of the job and provided no manual handling training and the employee is now out with back complaints what recourse does that employee have should she go down the route of not returning to work and taking constructive dismissal case or going down a different route? I have a family member in this situation and she is very stressed employer is not being at all supportive
Click to expand...

She needs to look up what constructive dismissal is first.

She may have a case for compensation as there was no manual handling training provided. Then follow Daddyman's advice.
 
There's never "a case for compensation". If she was injured at work she needs to have reported the accident to her employer and then proceed down the normal Injuries Board route and submit a claim to her employer. And then they will have their insurers deal with it and the support aspect doesnt come into it.
 
Ravima said:
If employee CHOOSES not to return to work, then where is the CONSTRUCTIVE DISMISSAL?
Click to expand...

Constructive dismissal is where a person has had to resign due to the employers conduct. In this case, the argument of the OP would be that due to the failure of their employer to meet their statutory duties around Health and Safety in the workplace, injuries the employee suffered as a result and the failure of the employer to deal in a constructive manner with the issues meant they had no choice but to resign. OP had to prove that their resignation was justified
 
How long was she employed for before this happened? If any meaningful time, I'd say the employer could be rather deep in brown smelly stuff, given that manual handling training is mandatory.
 
You can search all previous decisions on similar cases via this [broken link removed]. Having spent some time looking through about a dozen cases brought under the Unfair Dismissals legislation referencing injuries, I only found one resolved in favour of the claimant, the award in that case was the maximum allowed under the Unfair Dismissals Acts, 1977 to 2007 of €1,000.
 
"Constructive dismissal is where a person has had to resign due to the employers conduct. In this case, the argument of the OP would be that due to the failure of their employer to meet their statutory duties around Health and Safety in the workplace, injuries the employee suffered as a result and the failure of the employer to deal in a constructive manner with the issues meant they had no choice but to resign. OP had to prove that their resignation was justified"

at no stage is this inferred in the original posting.
 
Ravima said:
"Constructive dismissal is where a person has had to resign due to the employers conduct. In this case, the argument of the OP would be that due to the failure of their employer to meet their statutory duties around Health and Safety in the workplace, injuries the employee suffered as a result and the failure of the employer to deal in a constructive manner with the issues meant they had no choice but to resign. OP had to prove that their resignation was justified"

at no stage is this inferred in the original posting.
Click to expand...

OP had an accident at work doing a job that they were not trained for and employer is not being supportive in resolving the issue. If the OP is not in a position to return to work due to the actions of her employers, there is a reasonable argument for CD
 
thedaddyman said:
OP had an accident at work doing a job that they were not trained for and employer is not being supportive in resolving the issue. If the OP is not in a position to return to work due to the actions of her employers, there is a reasonable argument for CD
Click to expand...

I'm not so sure it's that clear cut. There's no onus on the employer to alter work practices to make allowances for an employee who now suffers from a bad back or other injury. I was involved in a case previously with an guy who got injured outside of work and was not capable of returning to full duties, the legal advice at the time was if he didn't show for work and perform the usual duties, it could safely be assumed he had relinquished the role. Thankfully we're a nicer company than that so after giving him over 6 months paid off to attempt rehab, when that didn't work out he was offered redundancy.

So if the OP's job always involved moving heavy bags of laundry, and the employee is now and forever incapable of that, then the employer does not have to adjust the role to account for this.

However, there is definitely something in the lack of training provided in manual handling and the injury incurred and their handling of an injury sustained in the course of their work.

The OP hasn't posted since the original question, if you're still reading, I'd strongly advise your relation follows Sue Ellen's advice and avail of the experts.
 
Leo said:
I'm not so sure it's that clear cut. There's no onus on the employer to alter work practices to make allowances for an employee who now suffers from a bad back or other injury. I was involved in a case previously with an guy who got injured outside of work and was not capable of returning to full duties, the legal advice at the time was if he didn't show for work and perform the usual duties, it could safely be assumed he had relinquished the role. Thankfully we're a nicer company than that so after giving him over 6 months paid off to attempt rehab, when that didn't work out he was offered redundancy.

So if the OP's job always involved moving heavy bags of laundry, and the employee is now and forever incapable of that, then the employer does not have to adjust the role to account for this.

However, there is definitely something in the lack of training provided in manual handling and the injury incurred and their handling of an injury sustained in the course of their work.

The OP hasn't posted since the original question, if you're still reading, I'd strongly advise your relation follows Sue Ellen's advice and avail of the experts.
Click to expand...

you are absolutely correct in what you are saying in that an employer has no legal obligation to hold a job for someone who cannot physically do it. However, my reading of the OP's post is that if you assume the back complaints were a result of work and that the employer fundamentally failed to meet their legal obligations on H&s, then there could be grounds for CD and damages. However there is insufficient information from the OP to truly make a call one way or another on here
 
There might be a case for going after the employer's insurance, bearing in mind that it is a work-related injury incurred in the workplace.
 
Yeah, I think the negligence/insurance angle is far more likely to yield a better result for the OP. Damages for CD are very limited even if you do manage to win.

We don't even know if the OP's relative was in the role for 52+ weeks for the UD legislation to apply.
 
So..how do you prove its work related. Whats to say there has not been an underlying problem all along. Was she having difficulty performing her task? If she had an underlying problem was serving chips at McDonald, what is there to say you wouldn't have the same issue you have here. There is a culture in this country ( and I would single out this country for its claims culture) of going gung ho after the employer as an easy way out. This may be a valid case, I dont know, but it never ceases to amaze me of the amount of H&S crap that gets bantered about in work situations. You bring in the negligence, insurance and h&s the onus is on the company to fight the case and prove their innocence, if they win, its cost them thousands, if they loose, it costs them thousands. Its very similar to why insurances company's settle without any fuss, they are on the hoof either way I run a good ship here, If I were to adhere to and cover every angles from a "h&s point of view", I may as well shut the company. What ever happened to personal responsibility. H&S was brought in to control some serious shoddy work practices and conditions, and should not be used as a lever to a another life style. Its like the social welfare system, it was brought in to keep you from the bread line, for a lot of people its now a career. As I say this individual may well have a case against the company, if the company operates a manual handling system and was stupid enough not to provide some form of training, it will cost them dearly, but you only have one side here.
 
The replys all have been very helpful and interesting. There was no accident in work, this is a genuine back pain condition where she had severe back pain and when she got the Mri scan it showed two protruding discs caused by wear and tear. The work of lifting laundry bags in a laundrette I think has contributed to this but cannot say if it caused it. she has a number of years of service. I agree with Ls400 that there is a claims culture in this country and its a pity because genuine cases get tarnished with the same brush. the employer in this case has been informed there is a back condition and she wants to go back to work but in an admin role. the employer has said he will give her a part time admin role only. she wont have to lift laundry and she is thinking she has no choice to accept this although she will suffer a loss in pay.she has not broached anything about insurance due to the fact there was actually no accident. I just feel he never gave her any proper training or put in a system to ensure staff did not lift a load over a certain weight and this was negligent. I contacted the workplace relations and the advice was it was a health and safety matter and to ask the employer for the health and safety statement and this should cover the how the employer deals with risk of employee injuries. I found their advice very vague and it does not appear there is any employment leglislation to cover the employers obligation to ensure safe work practices the leglislation is the health and safety act - they also advised contacting the HSA which I havent got around to yet, thanks for everyone for their contributions.
 
Last two posts could do with a few paragraphs to make them easier to read.

Sunshine2015, thanks for coming back and clarifying. From that, I think it's clear there is no case for the employer to answer in relation to the back condition. Also, they are under no obligation whatsoever to accommodate someone who is no longer physically able to perform the role they are employed in.

Any offer they give such as part time admin is in going above and beyond. It's not likely there's that much admin work in such a business, and now they will likely have to hire additional staff to cover the role no longer being performed. Large companies are better able to manage workforce to accommodate such changes, for smaller companies, it could have a serious impact on the bottom line.
 
There is actually quite stringent legislation on H&S in the 2005 Safety Health and Welfare at work Act and it lays down the responsibilities and liabilities of employers and directors, individual directors can and have been prosecuted in the past. The HSA website is quite good in the information it has on this.

In this occasion, I think any case against the employer would be questionable given the underlying conditions and the fact that it's not clear if the employer was ever informed of the issue over the years. They could still be prosecuted for not having a suitable H&S process in place but I doubt if that would open up any avenues around liability in this case. Likewise, given they have made a reasonable offer to the employee, I doubt if a case for CD would succeed.
 
You must log in or register to reply here.
Back
Top