Work Capacity Assessments and Employer Liability

The changes to the benefits system which demands that disabled and ill people must go through compulsory re-assessment under a shambolic system run by a private multinational is literally killing people, the subsequent withdraws of benefits of leave people in limbo struggling  to manage their illness and jump through the necessary hoops to get the means to survive.  In the meantime, no-one is legally liable for their well-being should they take up employment when they are too unwell to do so, at the same time, employer liability for injuries at work is being removed.

Stories of people found fit for work when they are patently, obviously not, abound.  From Karen Sherlock, who died a few months after being found fit for work to a blind-deaf tube fed man found fit for work following an error in his claim form by his carers, the tales of misery and destitution come thick and fast.  Suicides are rising, and fear and anxiety are gripping people struggling to manage within a laborinthine system.

As disabled people find their benefits withdrawn and are forced into the workplace to survive while jobs become thinner on the ground, they are likely to hide or minimise their disabilities in the hope of securing employment, even where they are not fit enough to do the task.  This not only puts them at risk, but also their fellow employees.

Related to this is the proposed change in the Health and Safety at Work Act (1974).  At the moment, should an employer breach health and safety regulations and an employee be injured as a result, the employee is entitled to financial compensation from the employer for make up for their lost wages, need for special equipment etc.   As criminal prosecution for workplace injuries are rare, it is threat of potential claims from employees which ensures that employers adhere to the regulations.  Without such, the regulations become empty and meaningless.
This change alters the wording from

Breach of duty imposed by health and safety Regulations shall  so far as it causes damage, be actionable except insofar as the Regulations provide otherwise.

Breach of duty imposed by health and safety Regulations shall  not, so far as it causes damage, be actionable except insofar as the Regulations provide otherwise

(see what they did there, nifty, huh?)

Effectively negating the whole of employer liability.

These two elements put together make workplaces vastly more dangerous.  What you have is an influx of ill and disabled people into the job-market, who wish to hide their disabilities to secure employment and consequently not receiving necessary support, while at the same time, employers have much less incentive to keep their workers safe.

Someone with early onset Parkinsons may hide their illness to resume work in their former trade as a welder, put that together with a negligent employer who ignores health and safety secure in the knowledge that they are unlikely to face consequences if they are found in breach and you have a recipe for disaster.  Ensuring that people are fit to work, is not only for the benefit of the individual but for those who work around them.

Should you be injured as a result of someone being employed to do tasks outwith their capacities, there is no recompense either from the body which considered them fit for work.  In a parliamentary question, the Minister for Welfare Reform stated that

Neither the Department for Work and Pensions nor Work Capacity Assessment healthcare professionals are liable for any adverse consequence suffered by a claimant following a decision that the claimant is fit for work or for work-related activity.

So, should an employer employ someone who is incapable of performing their task in an unsafe workplace, they are not liable through the removal of employer liability, and neither those who found them fit for work, nor those who enforced that decision leaving them no options but to find work to survive are liable for any injuries that they receive.  In industries acknowledged as being particularly dangerous.  Within the construction industry – one with a terrible record for health and safety, general labourers are increasingly being asked to carry out tasks that require professional training – in particular electrical work.

The net result is going to be a higher number of workplace injuries, and consequently a higher number of people who have difficulty working.  This is a vicious cycle whereby people are injured in the course of their work through poor health and safety are forced back into the labour market when unfit, required to work in unsafe workplaces and when injuries inevitably result, no responsibility taken.

It is critical that the unions, disability rights and benefits rights groups work together to ensure that this perfect storm does not lead to a mass upsurge in workplace injuries and deaths.






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