A little out of elbows?

I was sitting in a cafe last Sunday, when I overheard a man (who obviously ran a local bar), yelling down the telephone at one of his employees.

We’ve all had noisy conversations at work but this one troubled me.  Sitting with my coffee, I very quickly heard:

a)      the employee’s full name, and his medical condition

b)      where he worked

c)       that he was not registered with a GP

d)      that he wanted to work with a self-diagnosed ‘dislocated shoulder or elbow’

e)      that the owner felt the job involved lifting barrels and pulling pints and was not safe for someone with an injury

f)       that the employee wanted to come to work but have his duties adjusted; and

g)       that he had a contract that entitled him to employer’s sick pay (not just statutory sick pay).

The conversation went round and round, getting noisier and noisier, and it was obvious the boss’s instincts were mostly in the right place but that he had no idea how to sort out the situation.

I was sorely tempted to give him my card – but I was in my ‘scruffy Joe’s’ at the time, and didn’t think it would go down that well.  But here’s some advice for him, and anyone else who is in a similar situation.

a) and b)   A mobile phone in a cafe is not the place to have this kind of conversation.    If I know who is the guy is, who he works for and what he suffers from, and I don’t even live in that town – then a lot of people know.  This is a breach of confidentiality, and depending on the exact way the data is accessed and shared, a possible breach of the Data Protection Act which requires ‘sensitive’ information which includes sickness data to be held, accessed and used in a very structured way (http://www.ico.gov.uk/for_organisations/data_protection/topic_guides/employment.aspx)

c)            If you have staff who are not registered with a GP, they can register with one.  If they can’t get one to accept them, then the local Primary Care Trust (PCT) will organise one for them.  If they put in their postcode on this link, the details of the right PCT will appear   (http://www.nhs.uk/ServiceDirectories/Pages/ServiceSearchAdditional.aspx?SearchType=PCT&ServiceType=Trust).

d) and e)  Every employer should have risk assessments about heavy lifting and other risks at work.  If there are more than five employees these should be in writing.   Either way, if there is heavy lifting involved, the boss should already have proper procedures in place (even when people are not injured) (http://www.hse.gov.uk/pubns/indg143.pdf).   If the guy injured  himself  and was not given proper instructions/equipment/training then this could come back on the boss.

f)             There is a duty for the employer to make “reasonable adjustments” if the condition is a disability (as defined in the Equality Act).   This would normally apply to a condition that lasts a year or more.   A self-diagnosis may be a wrong diagnosis and it may be there is some arthritis in the shoulder or some other long term problem.   It may also be a straight dislocated shoulder, in which case relocating it could be a good thing!

g)            The employee can self certify off sick for up to 7 days (form available from http://www.hmrc.gov.uk/forms/sc2.pdf) .   After that a GP certificate (a fit note) is needed for statutory sick pay (SSP) to be properly paid.  Without a certificate, SSP should not be paid.   It’s a good idea, as an employer,  to read your own contracts and be familiar with what they say.

Finally, don’t have this conversation by shouting down a mobile phone.  Arrange to meet for a quiet chat and to confirm what you have said in writing so the employee can access the right PCT and start solving the problem.

Then I can have coffee in peace…………another cappuccino please?

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050                  Fax: 08452 303060
www.irenicon.co.uk
www.koffeeklatch.co.uk
www.balancingthebump.com
You can follow Annabel on Twitter