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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50148
Experience:  Qualified Employment Solicitor
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Employment Law
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I've been working in a secure environment years. Part

I've been working in a... Show More
I've been working in a secure environment for 12 years. Part of the role of a DCO in the company is to be accredited in control and restraint. It has been the case for the last 6 years that as a manager you don't have to be accredited in control and restraint. The Home Office have changed the rule in the last six months so that it means that all managers also need to be accredited in control and restraint. I am not accredited and am unable to do undertake the course due to an illness that occupational health indicates is covered by the disabilities act. I have been a manager here for 11 years now and there has never been any question about my performance, however, I am now being side-lined and am being taken through the Capability route due to the change in ruling that now prevents me from doing the job that I have been doing without question and without difficulty for the last 11 years. I'm good at my job and the control and restraint is a small proportion of the work that we do, I have been able to successfully supervise control and restraint in line with my job for the period. I don't know where I stand legally with regards ***** ***** pushed out of the company despite being able to do my job, not having any issues with my performance, and the only thing I cannot do is get accreditation for control and restraint due to disability. Can you please advise?
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Hello, my name is ***** ***** it is my pleasure to assist you with your question today. has it been surgested that you may lose your position because of your disabillity.
Customer reply replied 2 years ago.

Yeah, it has.

I have done the job I have for 11 years, 6 of them I've been unable to do the control and restraint training due to disability. Occupational Health have just confirmed that I am not fit to carry out the control and restraint training and that it is a permanent condition that does come under the disability act. The Home Office have changed the rules regarding the security clearance needed for me to perform my duties stating that I have to be an accredited DCO to do the management position, however, I can't do that because of the disability and this afternoon I am having a disciplinary interview under the grounds of capability when I have never been questioned regarding my performance in the roles that I do.

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you
Many thanks for your patience. The main issue here is that the requirement to be trained in control and restraint is not the employer’s decision but something which has been introduced by the Government. Therefore, the employer would have a duty to meet these new requirements and it would be out of their control as to whether you are allowed to miss out such training. They would have a legal duty to ensure that any employees doing the job have such training.
You are unable to undertake such training due to your disability. Unfortunately the employer cannot decide to make an exception and allow you to continue in the job without this – they would be bound by the new rules. It is not a question of whether you could do your job or not, but whether you meet the legal criteria for undertaking that job. If they allow you to remain in this position without the necessary accreditation they would be breaching the rules so this is out of their hands.
Instead, before considering dismissal, they should consider whether there is anything else you could do with your experience and skills which would allow you to work in a position that does not need such accreditation. This depends on what positions are actually available and the employer would not be expected to create a post for you just so that you remain in employment with them. So what happens with you next really depends on what positions are available and if you can be ‘slotted’ into any other available post. In the absence of a suitable position, the employer could consider dismissal, although I would say it would fall under the ‘some other substantial reason’ for dismissal, rather than capability.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you