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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
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I have an employee who we have extended his probation (it would

Resolved Question:

I have an employee who we have extended his probation (it would of been six months in Mar 15) due his hearing. We have asked him to attend a hearing test do that we can understand the extent of it before making any adjustments as he has always to it is not an issue until yesterday when we received a letter from him citing the disability act and how we are singling him out. Below is an outline of our response. I would just like a second opinion as to weather this is appropriate ?
The first indication that an issue with your hearing had arisen was when I attended your first months’ review at Peterborough when the issue was raised by your supervisor, Georgina Skeet.
Indeed your health / medical questionnaire is dated the 6th October, some five weeks after the start of your employment with us, where you have declared that you have a slight hearing issue and also
that you do not regard yourself as disabled or having any disability.
At your three month review, we again discussed both your operational performance and the improvements necessary, and again highlighted a number of issues around your hearing - citing a number
of examples of where we had concerns and our overriding worry regarding both your health & safety and personal welfare and that to your work colleagues due to this hearing problem and the duties that you
perform.
Reviewing my notes taken and discussed with you at this review, they stated:
Hearing
GF has a slight hearing problem.
GS has experienced issues with GF hearing her, and GF admitted he has to ask people to repeat things.
M&C are concerned that we don’t have a H&S incident related to the problem, and this problem doesn’t impact customer service.
Experience and Training
GF needs to speed up his warehouse duties to generate more office time.
GF needs to familiarise himself with M&C core product portfolio, although this will seem daunting to begin with. GS to prioritise product commodity groups.
GS to develop a detailed training plan (tick list), to identify what has been covered and what “gaps” exist. (Consider training at Norwich if necessary).
GF needs to be fully conversant with office tasks to competently manage the office tasks when GS is on leave and / or on customer visits.
At your six month review, at which most of the operational issues had been overcome, we were left with the outstanding concern regarding your hearing, and our repeated discussions with respect to the safety implications to the you, your colleagues and the company. Immediately prior to this review meeting I personally witnessed your inability to hear the door buzzer that sounded in the office and was clearly heard by myself and Georgina. Your six month review documentation was annotated that we had not resolved this hearing issue to the satisfaction of the company, and implored you to allow us permission to speak with your medical practitioner or for you to undertake an independent hearing test so that we could have some evidence to the extent of this problem and the resultant implications to all. I confirm that at this meeting I extended your probationary period for a further period of up to 3 months to allow time for us all to reach a resolution, but hoped that this matter could be brought to a conclusion sooner, but that this was dependent on you undertaking the test and sharing the results with us.
At no time have you or would I, Georgina or the company discriminate against you. Indeed you were employed with a known illness, and I feel we have been very patient in attempting to resolve this matter to the satisfaction of all.
With regard to the company providing additional assistance regarding new door buzzers / alarms, or the closing of outer door or providing new security systems, I cannot see how we can resolve this until we understand the extent of your hearing issue and the potential resolutions that may be required?
We also have had recently the issue of your dizziness and inability to continue working, and whilst this may have been a result of the ear syringing that you had done, we cannot be sure as you failed to seek medical advice and returned to work the next day. In the meantime, we planned and provided operational cover and support for 3 days to ensure your safety and welfare.
Finally, with regard to your salary increase, this was payable “Upon successful completion of your six month probation period”, and as your probation period was extended, a successful completion has not been reached? At no time has this been related to any discrimination, and again I repeat that you completed a health / medical questionnaire and stated that you are not disabled or as having any disability.
Whilst personally disappointed with your letter and its implications, I am sure that we can resolve these issues and bring them to a satisfactory conclusion, and suggestion that we try to conclude and document an agreed action plan at the forthcoming meeting with Emma Ship, our HR Advisor.
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
Hi thank you for requesting that I answer this question?
1. Do you want to retain this empoyee?
2. Have you sought a medical report as to the extent of the hearing problem?
Customer: replied 2 years ago.

Hi Tara,

We haven't sort a medical report to-date however we did ask him to attend a local specsavers (as it is a free assessment) to have a hearing test and discuss the results with us a few weeks ago. He agreed however when he attended specsavers couldn't conduct the test as he had a heavy wax build up so they advised he went to his Drs. I believe he did this and had his ears syringed which then caused an infection he told us as he had a slight balance issue a couple of weeks ago and had to be carried to his wife's car to be taken home. I understand he didn't seek further medical advice and returned to work the following day. However, the evening of his episode the company director was visiting to discuss a subject with all members of the branch and he had mentioned to his supervisor that he was worried he might not be able to see the slides or hear the director during the meeting which again it was discussed that he should have the hearing test so that we can assist him if we need to. Work wise we have no issues we are just concerned by his lack of effect to try help us to help him and if we did terminate what potential case he may see fit to claim ?

Thanks once again

Expert:  taratill replied 2 years ago.
Hi as he has less than 2 years service you can terminate for any reason so long as it does not discriminate contrary to the Equality Act. As this employee is causing you problems it is worth considering whether you could terminate. In order to fairly do this you need to check whether he would be considered to be disabled.
You can therefore ask him for a medical report from his doctor, if he refuses this then you can dismiss him for failure to carry out a reasonable management instruction.
You need to ask the doctor about the extent of the hearing problem and whether he considers this would have a 'significant impact on his ability to carry out day to day activities' and whether the doctor thinks he would be covered by the Equality Act, you should also ask the doctor what adjustments could be made at work to assist him.
If the report comes back saying he is not covered by the Act then you would be safe to terminate with notice.
I would be grateful if you would take the time to rate my answer. Thank you and all the best.
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