Employee with MS

[newboss]

I'm going to be especially vague because of data protection. But I have just started to manage a member of staff with MS.
It's very clear that after a few years in the company that he is not fulfilling his role and other people are doing 80% of his work for him.
He has various issues, such as poor memory, so you can explain a process one day for him, but the next day he will ask how to complete the task again. He has been told daily for 2+ years how to complete tasks, but can't remember them.
We have tried to compensate and have put every single process/task in writing for him, but after a few weeks he stopped using the folder we gave him so the problem persists.
It is also a very physical job, but he is in pain, and slow, which I sympathise with, but the work just isn't getting done in the time frame it needs to be so other people are having to stay late to complete work.
He forgets health and safety processes on a daily basis, which is often dangerous for himself and others, especially with machinery.
Management have asked what can be done to help him do his role, but he doesn't want anything adapted to help him. He's a young man, and I think he feels embarrassed by his disability and refuses any support he's given.
This has led to disciplinaries happening as he's not following work regulations in the company, but he gets very angry about this and then takes it out on members of staff for weeks after.
If anyone offers to help him (especially someone younger or newer then him) then he'll swear under his breath and take great offence to this.
He has told me that he's been looking for a new job for over a year, but hasn't had any luck so far. He admits he's not happy working for us, which is unfortunate for both parties.
I really want some strategies that might help him to do his job more effectively and to make life easier for him.
Ultimately he needs to do the physical things as this was the main part of the job role and he knew this when he applied, and he needs to follow health and safety processes as this is dangerous.
HR aren't much help, as they've offered to put things in place to help him, but he refuses.
Currently we have written all processes and procedures down, and we have implemented shorter shifts over more days a week and have put him in work earlier in the day than most people as we noticed he doesn't struggle as much first thing in the morning.
Does anyone have any ideas that I might be able to implement?
He's very open about his MS and he's told all the members of staff about it, but does not want us to implement anything to help him.
I guess it's causing resentment amongst other staff as he won't ask for help, so it's making their work load heavier, and he can't really be left unsupervised as he needs people to remind him of processes daily.
We are a very small company, so haven't come across anything similar before.
NB lots of small details changed in this post to make it less identifiable.

I just want to add to this that he has many good qualities, he's punctual, chatty to members of the public, helpful etc.
So this isn't me bashing him. It's just such a sensitive subject as everyone is scared to talk about disabilities, especially when it affects performance at work, and id love to be able to make life a bit easier for everyone.

Has he had an occupational health referral? That is where I would start.

No. I'm not sure our company has occupational health?
I'll enquire.

Oh that's tricky, definitely yes to occupational health.

But ime, if you have offered all sorts of reasonable adjustments and he doesn't want them, then there is some level of management of capability needed.

It's horrible, I can't imagine being in his shoes, but equally you are paying him to do a job which is not doing. If you hadn't offered adjustment, then you would be hauled over the coals, but if he injures himself or others because he is declining to have adjustments made to be safe, then it is a capability issue. Equally, you can expect him to use the reasonable adjustments to ensure safety in the workplace, to just refuse when you have evidence of safety issues is not ok.

What about workplace counselling availability to support him with dealing with having MS? Although depending on area, he may well have had that via the MS service as part of his diagnosis.

And decent HR to guide you through the process with clear action plans and evidence of what needs to change.

You're going to have to go down the capability route I think. And at each stage make it clear what adjustments you can and have put in place. The health and safety is a massive issue if he or someone else gets injured there could be big liability.

It definitely is a capability issue, but whenever there are disciplinary meetings he always blames his disability and says we are discriminating against him. Yet he won't allow any adjustments in order to do his job effectively and safely.

It’s a safety issue
If someone is injured due to this person not following procedures and the company knows this and doesn’t address it they could be legal consequences

Ask HR what the next steps are?

It's almost as though management is scared to deal with it as it involves a disability. But it needs dealing with before other people start leaving the company.

At the end of the day I can advice senior management as to my thoughts, but I think they're petrified of being accused of discrimination. That's why it's been going on for so long.

You need occupational health, most businesses don't employ in house but use outside expertise. An employment lawyer might also be necessary as it sounds like management might be too scared to act.

However as it sounds like you're not in a managerial role, you can't ask for any of that. What you can and should do is start logging every incident where you are being asked to go over and above your role, where there is unpleasant behaviours to team members like the swearing, and especially where health and safety is affected.

Keep a copy of these and also share with your manager (and if nothing happens, HR). He is entitled to reasonable adjustments, such as the written instructions, but it's not reasonable to ask others to take on extra work, let alone have their safety at risk.

This is hard, but the current situation isn't working for anyone - and at least an occupational health writeup will help make clear what he can do, and potentially in the (long) journey he is likely to have to go on to qualify for PIP.

Ah I see. Then put it on them? How are they wanting you to deal with this? And the rest of the team? Every single time health and safety is breached put it in writing.

Well it's an HR nightmare, but having a disability doesn't make you an angel, and it sounds like he's not prepared to meet the company half way, so it does become about capability and Management of him. If he can't do the job safely, your company is risking itself daily anyway, so they want to sort this ASAP, and I would use that route to force it up the ladder.

Occupational health assessment is definitely needed. You can pay for this to be done as a company. Do not ask him to see his GP for a fit note - I suspect you're heading towards having to consider whether he can continue to work in the business or at least what role is best for him.

For now - have a think about what reasonable adjustments have been agreed for his safety and wellbeing in light of his disability. If it's not formally written down, it should have been. All records of conversations about what's been offered and declined should be saved somewhere secure.

Your OP suggests he's not currently medically fit enough to carry out the day job and it's also a dangerous environment for him.

Refer him to an Occ Health Dr and ask specific questions you need answered about his fitness for work. Focus on what duties he needs to do to remain employed and consider whether another role is possible for him plus any adjustments - working hours, additional flexibility for late starts due to pain, additional sickness before hitting trigger points, equipment that would assist him (standing desk, lifting equipment etc).

You'll need to know how to manage the report from the OH provider and how you'll handle it from there.

www.hse.gov.uk/health-surveillance/occupational-health/index.htm

If it's a warehouse (I know you've changed details), the HSE would expect you to have carried out a specification risk assessment for him and ensure he is safe from hazards like moving equipment, machinery, vehicles; isn't climbing racking or jumping down into dangerous places etc. You'll be expected to protect him from himself so if he's ignoring H&S rules, you need to find alternative ways to make it work. Physical barriers, coded doors etc if it's reasonable and commensurate with the risk.

This might also be useful: www.mssociety.org.uk/care-and-support/everyday-living/working-and-ms/work-ms-and-you

Thank you, I'll look into these too.
I'm also going to see if we have details of counselling that employees can attend.
He's so so angry with the world, as I would probably be as a young man with a disability.
It's just a hard situation. He wants his independence, but due to his disability he can't work enough hours in order to facilitate this. And also isn't getting accepted for other higher paid jobs because of the issues he has and lack of qualifications due to memory issues I guess.
Our jobs are largely unskilled roles.
It is an awful situation and I sympathise.

Also he doesn't have a risk assessment in place. I'll discuss this tomorrow in work, thank you.

You need a OH referral. You need to write down absolutely everything down in details about the conversations that have been had and what you have offered - and what he's declined - send them in letter form to him and get him to sign them in agreement. (Does he get professional supervision?).

Yes you need to give reasonable adjustments where feasible but you don't have to put up with poor and dangerous work. You have offered a lot he is being difficult.

I say this as someone with MS working full time.

The MS society give 6 free sessions of councilling for people with MS.

This might help with the risk assessment and justification for it:

www.hse.gov.uk/toolbox/workers/disabilities.htm

Sorry, this is the better link: www.hse.gov.uk/disability/index.htm

This. Your directors need to be aware of their responsibilities to him and to the other staff.

If they breach health and safety legislation then they can go to prison. This might focus their minds.

Also, their Employers and PL insurance would probably not pay out.

Thank you all. This has been really helpful.
Lots of things to look into.
It needs dealing with as it's been brushed under the carpet for over 2 years now and hasn't been resolved!
I know that extra unpaid breaks haven't been discussed. This might help, if he works 30 minutes extra a shift, but gets 3 x 10 minute unpaid breaks.

Could you transfer him to another role, as you say he is chatty to members of the public so could he do some sort of customer service role? Could he do parts of the role working from home? Has he applied to Access to Work as they can do an assessment to see if there are any other adjustments that could be made (and funding provided for)?

The only roles are physical roles with machinery unfortunately. We do deal with members of the public occasionally, but there is not a job position just doing this.
Then there are supervisory/management roles which need a track record in managing people and be able to complete paperwork etc so we cannot move him to another role.

And no opportunities to work from home either. Plus he needs constant supervision and assistance, so I'm not sure he'd be able to work from home with another employer to be honest.

If you don't have an occupational health service, your HR team can refer the gentleman to an independent OH provider who can undertake an assessment and provide them with advice. This is beneficial as a multifaceted measure as the chap can talk to a medical professional in confidence about his difficulties if there is any possibility that the reason he doesn't want to talk about it and wont use the measures are because he doesn't think they're helpful or simply doesn't want them. And crucially they can give you an opinion on whether the individual is indeed fit to undertake their substantive duties, and recommend evidence based adjustments to assist him if suitable.

MS is one of a very teeny tiny group of conditions that is automatically qualified as a disability within the provisions of the equality act. What the generally means in practice though, is that businesses without much medical or legal support think this means the person is teflon coated, and that they should be allowing the person so much flexibility in their role that it negatively impacts on everyone else in the business, and that it's appropriate for things such as health and safety processes to be flouted. Which, as you've identified, is completely untrue. It's also really not right for this gentleman to be enabled to be in the situation, as it's probably causing him a tremendous amount of stress that he just won't let on about, and based on the limited information you can share, it doesn't sound like he's fit to undertake his role safely in any capacity at present.

What an absolutely horrendous situation for you as an incoming manager; to be picking up the pieces from prior mistakes, and trying to support someone who is so utterly and thoroughly pissed off with the world about frankly, a truly shitty deal.