Employer negligence - possible claim

[harleymlb]

I will try to be brief -
I work for the Civil Service (HM Prison Service) and i am awaiting for surgery for ulna nerve decompression to both arms which is medically known as Cubital Tunnell Syndrome.
I am a frontline Officer of 19 years service, and as such carry out the full range of duties that i am contracutaly obliged to do. One of these is to be able to provide a response to any incident and be able to use Control and Restraint when necessary. I have to under take annual refresher training too (to remain in date) which i currently am.
Right - Due to this underlying condition i was refered to ATOS (occupational health) to see what might be done to adjust my duties until i have had surgery (advised by surgeon should be in 6-8 week).
This appointment was on 8th August and the report reccomended that i had reasonably adjusted duties for a window of 6-12 weeks or until i had undergone surgery. It is clearly written by the author that i should not be in a position to use C&R (Control and Restraint) and should be on desk type or non operational work.
Unfortunatley the employer has not acted on the advice that was provided by the ATOS Nurse at this time, and i have contiuned to remain on full operational duties since August. My employer is aware of the content as i have discussed it with my line manager who has refered it to the Senior Management Level. It seems to be that i have been forgotten!
So during my duties today, i had the rather unfortunate but warranted task of restraining a violent and refarctory prisoner who spontaniouisly tried to assault me and my 2 colleagues.
This resulted in me further aggrevating my current medical conditon. I managed to get an emergency appointment for my GP this afternoon who i showed the ATOS report to. She could not believe that the Employer had failed to act on the advise of there own OH advisor and so has now signed me off from work (not fit to work) for 6 weeks. The rational behind this is that the surgery on one of my arms should of been completed. I expect a long time off and as such i have been refered for ill health retirement, although in my experience this is extremley rare to get, more likely i will be taken to a capability hearing and be dismissed on the grounds of medical inefficiency!
So to sum up, do i have a case of negligence by my employer as i have attended there appointments and due to them not changing my duties i am now off feeling very sore and uncomftable.
Any advice would be appreciate. Incidently i am in the POA (Prison Officers Assocaiation)
harleymlb

[harleymlb]

Re: Employer negligence - possible claim

I will try to be brief -
I work for the Civil Service (HM Prison Service) and i am awaiting for surgery for ulna nerve decompression to both arms which is medically known as Cubital Tunnell Syndrome.
I am a frontline Officer of 19 years service, and as such carry out the full range of duties that i am contracutaly obliged to do. One of these is to be able to provide a response to any incident and be able to use Control and Restraint when necessary. I have to under take annual refresher training too (to remain in date) which i currently am.
Right - Due to this underlying condition i was refered to ATOS (occupational health) to see what might be done to adjust my duties until i have had surgery (advised by surgeon should be in 6-8 week).
This appointment was on 8th August and the report reccomended that i had reasonably adjusted duties for a window of 6-12 weeks or until i had undergone surgery. It is clearly written by the author that i should not be in a position to use C&R (Control and Restraint) and should be on desk type or non operational work.
Unfortunatley the employer has not acted on the advice that was provided by the ATOS Nurse at this time, and i have contiuned to remain on full operational duties since August. My employer is aware of the content as i have discussed it with my line manager who has refered it to the Senior Management Level. It seems to be that i have been forgotten!
So during my duties today, i had the rather unfortunate but warranted task of restraining a violent and refarctory prisoner who spontaniouisly tried to assault me and my 2 colleagues.
This resulted in me further aggrevating my current medical conditon. I managed to get an emergency appointment for my GP this afternoon who i showed the ATOS report to. She could not believe that the Employer had failed to act on the advise of there own OH advisor and so has now signed me off from work (not fit to work) for 6 weeks. The rational behind this is that the surgery on one of my arms should of been completed. I expect a long time off and as such i have been refered for ill health retirement, although in my experience this is extremley rare to get, more likely i will be taken to a capability hearing and be dismissed on the grounds of medical inefficiency!
So to sum up, do i have a case of negligence by my employer as i have attended there appointments and due to them not changing my duties i am now off feeling very sore and uncomftable.
Any advice would be appreciate. Incidently i am in the POA (Prison Officers Assocaiation)
harleymlb

HI Moderator - I have placed this post in the wrong Forum. Could someone move it to the correct location Please.

[teaboy2]

Re: Employer negligence - possible claim

Yes the employer is in breach of his obligations and breach of his duty of care, which therefore puts them in breach of contract.

You need to raise a formal grievance and repeat everything they have done/failed to do, explaining they are in breach of their duty of care towards you resulting in futher injury or worsening of your condition leaving you in considerable pain and discomfort. Remind them of what ATOS said in their report and recommendation to your employer.

Keep us updated every step of the way.

[harleymlb]

Re: Employer negligence - possible claim

Yes the employer is in breach of his obligations and breach of his duty of care, which therefore puts them in breach of contract.

You need to raise a formal grievance and repeat everything they have done/failed to do, explaining they are in breach of their duty of care towards you resulting in futher injury or worsening of your condition leaving you in considerable pain and discomfort. Remind them of what ATOS said in their report and recommendation to your employer.

Keep us updated every step of the way.

Thanks for the advice, will keep you informed.

[miliitant]

Re: Employer negligence - possible claim

an emplyer does not have to take the recomendations of an occupational health advisor, but would be very foolish not to

has this been reported under the accident reporting procedure as this will be classed as a RIDDOR, THE emplyer has a legal obligation to report the accident/incident

but, this is covered under

Management of Health and Safety at Work Regulations 1999:

Your employer has a 'duty of care' to look after, as far as possible, your health, safety and welfare while you are at work


after the ATOS report, a risk assessmant should have been actioned, did they do a risk assessmant

[zeitgit]

Re: Employer negligence - possible claim

Hi harleymlb. Have you got the POA involved? Your union should be first point of call. Good luck, hope they're better than Napo.
zeitgit

[harleymlb]

Re: Employer negligence - possible claim

an emplyer does not have to take the recomendations of an occupational health advisor, but would be very foolish not to

has this been reported under the accident reporting procedure as this will be classed as a RIDDOR, THE emplyer has a legal obligation to report the accident/incident

but, this is covered under

Management of Health and Safety at Work Regulations 1999:

Your employer has a 'duty of care' to look after, as far as possible, your health, safety and welfare while you are at work


after the ATOS report, a risk assessmant should have been actioned, did they do a risk assessmant

Unfortunatley there has been no Risk Assessment completed since my ATOS appointment ( in August) as said, i think i have been "overlooked".
I understand that the report is a independant assessment, but my employer refered me there in the first instance, if they are not going to accept any reports what is the point of attending in the first place and wasteing public money?
I have completed the accident book at work prior to my shift ending.
Perhaps i might have the employer on the "ropes" now. As said previoulsy, due to the condition i have and the expected recovery period for one operation and i need two, and also the unknown outcome for functionality i am being refered to the OHP for consideration for ill health retirement.
Will this assist my case for this?

[harleymlb]

Re: Employer negligence - possible claim

Aah yes good old NAPO, i work with seconded probation staff in the prison and not many of them in that union..i wonder why?
We have all just accepted "Fair and Sustainable" for new entrants to the Prison Service, but those currently employed remain on their original terms and conditions unless you are going for promotion when you will be under F&S contract.

PCS is a strong union though!

[harleymlb]

Re: Employer negligence - possible claim

Hi harleymlb. Have you got the POA involved? Your union should be first point of call. Good luck, hope they're better than Napo.
zeitgit

I think all unions are on the back foot in the current climate as it favours employers!

[miliitant]

Re: Employer negligence - possible claim

not on my union is does not, i fight for the member 100%, even going against HQ advice on occasions

the old ill health retirement routine, you are now a liability and we do not want to make reasonable adjusmants which cost, so we do IHR.

WITH IHR

THE occupational health adviser makes a report on your gp report if IHR is applicable, as it is ATOS and who pays the piper, it will be IHR recomendation. but you have to accept it, not your boss.
you have rights under the employment rights act and equalities act for reasonable adjustmants which can include other duties,addmin, etc

if you take IHR, the payout is normnally

34 weeks wages
12 weeks pylon, pay in lieu of notice
any outstanding holiday entitlement

first 30 k is tax free but double check what benefits are being offered first if you decide to take IHR

have you spoken to your health and safety rep ref risk assessments, you need to make it a matter of record as its for your protection

if it takes a grievance then so be it, it will help in any poss claim for injury compensation

[harleymlb]

Re: Employer negligence - possible claim

not on my union is does not, i fight for the member 100%, even going against HQ advice on occasions

the old ill health retirement routine, you are now a liability and we do not want to make reasonable adjusmants which cost, so we do IHR.

WITH IHR

THE occupational health adviser makes a report on your gp report if IHR is applicable, as it is ATOS and who pays the piper, it will be IHR recomendation. but you have to accept it, not your boss.
you have rights under the employment rights act and equalities act for reasonable adjustmants which can include other duties,addmin, etc

if you take IHR, the payout is normnally

34 weeks wages
12 weeks pylon, pay in lieu of notice
any outstanding holiday entitlement

first 30 k is tax free but double check what benefits are being offered first if you decide to take IHR

have you spoken to your health and safety rep ref risk assessments, you need to make it a matter of record as its for your protection

if it takes a grievance then so be it, it will help in any poss claim for injury compensation

Hi Millitant,
Thanks for your concise reply, i am glad your Union is serving its members well. I had to leave the local commitee of the POA this year as i had some personal issues that i had to deal with (bereavement) so i thought it only fair to my members to step down after 6 years. I enjoyed my time challenging bully boy management and the "make it up as you go along mentality"! However i still stand by my comment about the employer having the upper hand, we have just sold the family jewels for all new employees to my job. Lower pay, worse pension arrangements, loss of LPA, it goes on and on. But we the current lot keep our T&C's unless we get demoted or go for promotion. Its all more for less!
I am still close to all the current committee and also i am a memeber of the POA and offer IAG to staff who ask.
Anyway to the post-
I am informed that IHR is like "rocking horse S**T" to get, however with all the pension changes in the Civil Service i am not sure if the rules still apply to the Classic Pension that i am on (joined 1994). Previously (or currently?) a member of the Classic Scheme would be considered if-

What are the criteria for ill-health retirement benefits?
The criteria are that you are prevented by ill-health from discharging your duties and that your ill-health is likely to be permanent.
• Prevented means having a significant incapacity. It does not mean ‘unwilling’, ‘disinclined to’ or ‘inconvenient to’ undertake duty.
• Ill-health means a recognised medical condition giving rise to the incapacity. Diagnosis must be supported by clinical findings.
• Discharging duties means providing regular and effective service in the normal duties of the grade.
• Likely means on a balance of probabilities.
• Permanent means until normal retirement age for your job.

I am not certain if this still applies, i did contact the pensions section of HM Prison Service however now i am off work i will not be able to access their reply.
If anyone has experience of securing IHR from the Civil Service i would like to know if it was easy!
As you may gather i would be happy to accept IHR, but in my experience the employer prefer to let you be dismissed on medical inefficiency. You still get some form of compensation based on reckonable service, but i would prefer IHR! Either way it is looking uncertain for my career.
On another issue which is negligence, is it worth contacting one of these no win no fee solicitors or should i contact Thompson who are the POA solicitors? I thought that the NWNF type might be a bit quicker for a response from the Treasury.

[miliitant]

Re: Employer negligence - possible claim

the union solicitors will only offer legal representation to its members and spouse,children, etc

did ATOS say your condition would prob fall under the equalities act 2010

for the record

i now work directly for the solicitors at HQ, AND STILL A BRANCH OFFICIAL, but i was once employed by a public service and took IHR

[harleymlb]

Re: Employer negligence - possible claim

the union solicitors will only offer legal representation to its members and spouse,children, etc

did ATOS say your condition would prob fall under the equalities act 2010

for the record

i now work directly for the solicitors at HQ, AND STILL A BRANCH OFFICIAL, but i was once employed by a public service and took IHR

The ATOS (nurse) advisor said that i did not come into the equalities act or serious underlying medical condition at that point (still current).
However she also said that once i had undergone surgery it would meet that criteria. I must admit i was a bit confused on her answer but excepted it as they are supposed to know the rules!
I am on the "urgent" waiting list for the operation, this will (i was told) mean an op in 4-6 weeks so now i am signed of for 6 weeks hopefully it will run out when i am near the top of the list. This will mean another period off on sick leave, who knows what will happen after this as my surgeon said it could take 4-6 months to achieve functionality if at all!

Thanks for your help on this it is really appreciated especially as i am a "newbie".

[miliitant]

Re: Employer negligence - possible claim

The definition of ‘disability’ under the Equality Act 2010

In the Act, a person has a disability if:

• they have a physical or mental impairment
• the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities

For the purposes of the Act, these words have the following meanings:

• 'substantial' means more than minor or trivial
• 'long-term' means that the effect of the impairment has lasted or is likely to last for at least twelve months (there are special rules covering recurring or fluctuating conditions)
• 'normal day-to-day activities' include everyday things like eating, washing, walking and going shopping

People who have had a disability in the past that meets this definition are also protected by the Act.

[harleymlb]

Re: Employer negligence - possible claim

The definition of ‘disability’ under the Equality Act 2010

In the Act, a person has a disability if:

• they have a physical or mental impairment
• the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities

For the purposes of the Act, these words have the following meanings:

• 'substantial' means more than minor or trivial
• 'long-term' means that the effect of the impairment has lasted or is likely to last for at least twelve months (there are special rules covering recurring or fluctuating conditions)
• 'normal day-to-day activities' include everyday things like eating, washing, walking and going shopping

People who have had a disability in the past that meets this definition are also protected by the Act.

Thanks again Millitant I will use this info if i have to challenge ATOS/HM Prison Service on IHR.