Employers’ duty to make ‘reasonable adjustments’
If an employee is ill to the extent that they are deemed to be disabled within the provisions of the Equality Act 2010, the employer has an obligation to make ‘reasonable adjustments’ to enable the employee to return to work and/or remain in work.
The question which has confounded employers is “What does ‘reasonable adjustments’ actually mean for my business?”
There have been various cases heard in Employment Tribunals, Employment Appeal Tribunals (‘EAT’), the Court of Appeal and the Supreme Court - which has clarified some aspects and made others more opaque.
Hindsight is always ‘gin clear’ as the saying goes – but for the employer faced with the situation - what is the correct method to adopt?
First and foremost – check your employment contracts and policies relating to sick leave, return to work, and how it is to be managed.
If you don’t have these – contact your lawyers and get them drafted, agreed and in place – a failure to provide particulars of employment is against the law so don’t get caught out by already having the tribunal against you on such a simple point.
Secondly – what is the nature of the disability? Does it affect the employee’s day to day living? Consider obtaining a doctor’s report as to their ability to carry out their job, and what needs to be done to assist them to do that. Consider also obtaining an occupational health report to assist you in ascertaining what adjustments you can make to enable the employee to return to work.
Thirdly – keep the employee informed, and they in turn should keep the employer informed as to their progress and future diagnosis.
What a Tribunal will consider:
1. The Employer has a duty to make reasonable adjustments for employees as well as applicants for jobs.
2. That duty arises where any provision, criterion or practice applied by the employer puts the disabled person at a disadvantage when compared to someone who is not disabled. Taking into account the physical features of the premises used by the employer
3. The nature and extent of the substantial disadvantage suffered by the employee
4. The extent to which the making of the adjustment would prevent the substantial disadvantage in question.
5. If any aids can be provided to assist the employee
6. The financial and other costs involved to the employer
7. The employer’s resources, its activities and size
An example for illustrative purposes is as follows:
Fred is a plumber and wishes to employ someone to assist him. He works in various domestic premises, and his work involves lifting out and fitting bathrooms etc.
Jack applies. He cannot lift anything heavy due to having a hernia operation two months ago. Fred decides not to give him the job. Jack makes a complaint to the tribunal.
Jack’s claim is not a disability claim – for his hernia operation is not likely to affect his ability to work as a plumber. Indeed the current situation is temporary. Fred is not liable for refusing to give him the job.
Jack in the alternative is deaf. Fred refuses to give him the job. Jack makes a complaint to the tribunal. Fred would be obliged to show that he had considered steps 1-7 above – and that having someone deaf working for him would not be feasible. However, adjustments could be made – so that one could go either way, dependant on the evidence provided.
Fred has an electrical business and employs many staff. Part of their role is to attend sites to carry out PAT testing. Jack – who is deaf – is refused the job. Jack makes a claim. Fred would have to show the health and safety risks of having someone deaf working in the factory – and why he couldn’t double up Jack with another colleague.
Please note – all of the above are for illustrative purposes only and are not be relied upon as the information is generalised.
If you as an employer are facing questions relating to disability, the return to work of an employee who has been ill or become disabled and cannot carry out their roles, then seek legal advice.
At Quality Solicitors Dunn and Baker the litigation team are experienced in employment law and can guide you through the maze of ever changing legislation and cases. So whether employer or employee – you know to call the Dunn and Baker litigation team. For us, business matters.