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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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Further to a meeting with the individual concerning his hearing

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Further to a meeting with the individual concerning his hearing on the 17th July the regional manager made it perfectly clear that until we had something in writing either from his Dr or an independent medical practitioner we physically are not in a position to make any adaptions to the working environment until we know to what extent his hearing deficiency actually is. The individual himself tells us its not an issue however his fellow colleagues are becoming frustrated on a daily basis with him not fully hearing instructions or customers on the telephone. Our aim for understanding the issue in hand was to help him however I know believe he may look to take this further as he has resigned from his position this morning. He has informed me he has another job to go to and whilst he has enjoyed working for us he can not continue with this attitude from management.
At the meeting on the 17th we recapped on the following:
The individual was employed on in Sept 2014 with a 6 months probation to be reviewed at 1, 3 and 6 months. At each review the hearing concern has been raised. At six months whilst everything else work wise is to an acceptable standard his probation wasn't signed off as successful as the hearing was still to be addressed by the individual. On his application form he has signed to confirm he is does not consider himself disabled and that he doesn't require any adjustments to overcome a disability in relation to the requirements of his job. His Equal opportunities questionnaire again signed by the individual he declares he has no disability but has signed a medical questionnaire some 5 weeks after joining us coincidentally received by HR just after his 1 month review was carried and the hearing concern was first raised. Following the last meeting the regional manager in a nutshell put the matter back into the hand of the individual stating that the issue isn't going to go away however unless we can understand how good/bad the hearing loss is are hands are tied as to what assistance we can provide for his own safety and for those of his colleagues who he works with on a daily. The warehouse operates a forklift truck and in a confined area the noise is rather load and it was noted as a concern that the individual may not hear the truck (he responded by saying he hasn't had a problem so far) but in our defence it hasn't really been tested.
The individual gave me consent to write to his Dr however he also confirmed that his Dr has no correspondence from the hospital but was happy for us to write to the Dr anyway. From a recent hospital appointment we know he has had his ears syringed in the last 3 weeks which has left him with a nasty ear infection and until that has cleared they would not see any point in carrying out a hearing test. However he has been notified that he has lost of his half of his right hear drum and at some point it can be corrected with a skin graft but certainly not until his infection as completely healed. I will also add that on sign off a successful probation the individual was due a £500 salary increase. This didn't happen due to the hearing being unresolved but the regional manager stated in his meeting that his work wasn't an issue and that he would implement the increase and back date it to March 15 when it should of been actioned however he still wasn't prepared to sign the probation off as successful until the matter of the hearing results had been concluded. My concern is if he may persue a claim for constructive dismissal but would appreciate your views on this - Thanks as always for you assistance
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
Hello thank you for requesting my help with the issue, can you tell me if the employee is still employed with you?
Customer: replied 2 years ago.

Yes, he resigned yesterday and has agreed to work his 4 weeks notice so will leave us on the 26th August.

Many Thanks

Expert:  taratill replied 2 years ago.
So to cut a long story short he would not provide you with the information necessary to make reasonable adjustments to assist with his hearing and assist him to continue in his role?
Customer: replied 2 years ago.

In a nutshell yes, as he believes its not really an issue !!

Expert:  taratill replied 2 years ago.
Ok there is no risk of a constructive dismissal claim as he has less than the 2 years required service to bring a claim.
There is a risk that he may try to 'have his cake and eat it' by claiming disability discrimination.
In order to protect yourself I would suggest you write to him to say that you accept his resignation but are disappointed that he was not willing to engage in making adjustments to the work place to help him to stay in place.
If he does then bring a claim it will assist you in defending it, which you can, as you cannot make adjustments if a person is unwilling to cooperate.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

Unbelievably I have a few minutes received an email confirming he attended a hospital appointment yesterday afternoon and a report has been attached. I think it shows that indeed his right ear is significantly worse than his left ear. He is asking to be released early as it would be prudent to have the necessary arrangements made to obviate these hazards as soon as possible.

I intend to acknowledge his resignation as you stated previously following this recent email would you suggest any other measures or precaution at this stage.

Em

Expert:  taratill replied 2 years ago.
NO that should be sufficient. You could also say that you would be willing to reconsider his employment with you if he agrees to cooperate with making reasonable adjustments. You do not need to do this, but it will make you look like a good proactive employer in the event a claim is raised.
I would be grateful if you would take the time to rate my answer as I am not otherwise credited for my time. thank you and all the best.
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