New research has shown that one fifth of disabled employees have had their request to work from home, be furloughed or redeployed during the pandemic rejected. Whether an employee’s request is valid depends on the individual case, however, the pandemic shouldn’t be used as an excuse not to grant reasonable adjustments. So, what considerations should be made before a decision is reached, and what issues can arise should requests be refused without good reason?
What is a ‘reasonable adjustment’?
A ‘reasonable adjustment’ is a change that is made by an employer to reduce or remove the impact of an employee’s condition, which may class as a disability under the Equality Act 2010 (EqA). There is a duty on employers to make reasonable adjustments if the employee is classed as disabled under the EqA and is placed at a ‘substantial disadvantage’ in comparison with persons who are not disabled. Reasonable adjustments can be made to the physical characteristics of the workplace itself, to the way a provision, criterion and practice is applied by the employer, or through the introduction of an aid, which can help the employee during the working day.
At present, government guidance states that everyone who can work from home must do so. However, this guidance has altered throughout the pandemic as the country enters and exits lockdowns and tier systems. Therefore, for employees who are extremely vulnerable, attending the workplace while the pandemic continues might not be a sensible option, no matter what the official guidance is at the time. As such, employers should be more flexible in their approach to people coming into the office to ensure they are not placing anyone in an unsafe position.
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Going into the workplace
However, if it is not possible for an employee to work from home, it can be more challenging to find a suitable solution. To reduce the spread of COVID-19, employees that are required to attend the workplace often must wear a mask. For some, this isn’t feasible due to health conditions such as severe asthma. If working from home is out of the question, alternative options include redeploying the member of staff to another part of the business where wearing a face mask is not compulsory or putting them on furlough until the employee can safely return to work.
Under the EqA, conditions such as asthma can constitute disabilities and must therefore be considered by employers in relation to whether reasonable adjustments should be made. If an employer fails to make these, it could lead to a disability discrimination claim.
The definition of ‘disability’ under the EqA might not be as obvious as people think, so it is key to understand exactly what does and does not constitute a disability while considering the duty to make reasonable adjustments. According to the EqA, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out daily activities.
Returning to the example of an employee with asthma who is unable to wear a mask, if the employer refuses to redeploy them or place them on furlough, and instead puts them on sick leave or terminates their employment, this could class as the disability giving the employee a ‘substantial disadvantage’ to their colleagues, and a discrimination claim becoming viable.
How can an employer decide whether an adjustment is reasonable?
To avoid such claims, employers must give careful thought to several factors when deciding whether an adjustment is reasonable. For example, the extent to which the adjustment will remove the disadvantage, how practicable the adjustment is, financial and other costs involved, the disruption to the employer and the workforce, the finances and resources available, and the nature of the employee’s activities. If after considering each of these aspects the adjustment appears to be reasonable, then the employer should do what they can to implement it. If not, the employer should explain their reasoning to the employee and discuss alternative options, if there are any that are appropriate.
Demonstrating that these factors have been carefully considered when reaching the final decision can go some way to successfully defending any future discrimination claims. As a result, it can be wise to record the considerations that have been made as well as the conclusions reached. Employers have a duty of care towards their employees and every effort should be made to accommodate their needs where possible.
The pandemic has once again highlighted the issue of disabilities and reasonable adjustments in the workplace. With four fifths of employers refusing disabled employees’ requests, there is a risk of numerous discrimination claims rearing their heads in the near future. This isn’t to say that these decisions were made without all relevant factors being considered. However, employers must be sure that all avenues have been explored before refusing a reasonable adjustment request outright. After all, everyone has a right to be able to work safely and without unnecessary challenges.
As an associate in Shakespeare Martineau’s employment team, Ewan works primarily with business owners and directors advising on the employment aspects of corporate governance.
He deals with day-to-day HR issues, such as disciplinary and grievance situations, drafting contracts, policies and procedures and settlement agreements, as well as Tribunal litigation.
Ewan also enjoys providing training on a wide range of HR issues, through delivering seminars and mock tribunals.
