The term Reasonable Adjustment(s) will only be relevant within the scope of Employment Law if you are faced with an employee who has a disability. The definition of disability is defined within the Equality Act 2010.
An employee (or worker) has a disability if they have a physical or mental impairment that has a substantialand long-term adverse effect on their ability to carry out normal day-to-day activities (s.5).
“Long-term” means 12 months or longer, so where an employee has a medical condition that has lasted or is expected to last longer than 12 months, they are likely to be protected under the Equality Act 2010. It is sometimes difficult for employers to determine whether a ‘disability’ is present, and the law does not help because it does not identify specific medical conditions that would be applicable. However, where an employee has a diagnosis of something like cancer or diabetes, it is almost certain that they will be deemed to have a ‘disability’. Other conditions are less obvious, and the employer can only be expected to comply with their duty under this Act if they know about the condition.
Under s.20 of the Equality Act 2010, employers have the duty to make ‘reasonable adjustments’ where a disabled employee or worker could be put at a ‘substantial disadvantage’ when compared to their non-disabled colleagues. The requirement for ‘reasonable adjustments’ only applies to a disability defined as such within the Equality Act 2010 (so it is quite specific). You need not worry too much if your employee does not have a medical condition that is an impairment that is substantial, long-term or adversely affects them. Many employers will, however, still want to be proactive to support their employers regardless of what the law requires of them.
When considering any potential ‘disadvantage’ the Act refers to:
- The employers’s application of a provision, criterion or practice (PCP),
- a physical feature of the employer’s premises or
- the absence of, or need for, an auxiliary aid.
And the term ‘substantial’ means something that is more than minor or trivial (s212(1)).
If determined (or strongly suspected) as a ‘disability’ under the Equality Act 2010, the employer MUST take reasonable steps to avoid any disadvantage to the employee. The duty applies to ALL employers regardless of business size and there can never be a justification of a failure to make reasonable adjustments. Although, consideration can be given to whether an adjustment is reasonable or deemed reasonable depending on the employer’s circumstances.
As you can imagine, this is not always easy to determine. You can be caught out very easily so here is the outcome of a REAL case.
(29th January 2021)
A BACKGROUND SUMMARY
Mrs D’Silva worked for the NHS trust for over 15 years. She was employed as a receptionist.
In 2016, she began to suffer from stress and anxiety and she had a number of periods of sickness absence.
While Mrs D’Silva was on sickness absence, the trust restructured the department. On her return, Mrs D’Silva was given the role of pathway patient support, which included administrative and reception work.
Mrs D’Silva told the trust that the new role was “stressing her out”. Following further sickness absence, the trust began its sickness absence procedure. Mrs D’Silva attended several appointments with occupational health and she told them that she had become “absolutely petrified” of the public.
Occupational health informed the trust that Mrs D’Silva had developed a “public phobia”. It advised that, if the trust was not able to accommodate Mrs D’Silva in the back office, the only other option was to redeploy her to a non-patient-facing role. This did not happen.
The trust progressed its sickness absence procedure, which led to Mrs D’Silva’s dismissal for ill health.
Mrs D’Silva brought the following claims against her employer:
- failure to make reasonable adjustments
- unfair dismissal
- disability-related harassment, and
It is not uncommon, when an employee is dismissed due to ill health or even for another reason, where there is a disability, they will VERY OFTEN throw in a number of additional claims to see which ones ‘stick’. This is a huge issue for employers, AND Tribunals sometimes referred to as the ‘kitchen sink approach’.
I am not saying that this was the case here, but I have certainly experienced it in other cases I have dealt with.
WHAT DID THE TRIBUNAL DECIDE?
The ET found that, after the occupational health assessment doctor had offered a diagnosis, the Trust made no effort to find the claimant alternative employment and did not follow its own policy on the matter. The Trust’s policy was described by the judge as being ““light touch”, still putting a lot of the onus on the employee…[when] the duty to make reasonable adjustments is on the respondent, not the claimant.”
The ET judge went on to say that: “Leaving it to the employee to find an alternative role might successfully lead to an adjustment being made in some cases but the approach adopted by the respondent to leave all the effort to the claimant, and indeed the only slightly better ‘light touch’ approach in the policy, runs the risk that, like here, there are a number of suitable roles that would be reasonable adjustments but an adjustment is nevertheless not made.”
It was also found that the claimant’s past sickness absences were held against her in the decision-making process which led to her dismissal.
The ET ultimately decided that: “If a fair procedure had been followed and reasonable consideration given to redeployment then the likelihood is the claimant would have remained at work in a suitable vacancy.”
After upholding Mrs D’Silva’s claim for reasonable adjustments, the tribunal went on to find that her dismissal was unfair. However, the tribunal dismissed her claims for disability-related harassment and victimisation.
The unfair dismissal claim was therefore upheld, and the claimant was awarded £56,684.73, which included a £24,000 award for “injury to feelings”. As you can see, this is not a small amount of money.
WHAT CAN WE LEARN FROM THIS?
Firstly, we must not be complacent when dealing with medical conditions regardless of how serious or not, the employer feels that they are. If there is a disability and remember, it does have to meet the criteria defined in the Equality Act 2010, there is automatically a duty on the employer to make reasonable adjustments. The term ‘reasonable’ is not defined either, which doesn’t help, but there are steps and processes that you can implement to demonstrate that you have taken the situation seriously and tried to do the best you can. Demonstrating these is of the utmost importance if employers are to successfully defend any claims brought against them through an Employment Tribunal.
- Use occupational health specialists to help you understand the condition. They are the medical experts, not us managers or employers.
- Listen to your employee. They know what causes problems for them. They can also offer sensible suggestions for possible adjustments.
- Undertake Risk Assessments and make sure you follow up on anything that is identified. It is not just a ‘tick box’ exercise.
- Check that measures (adjustments) identified are put in place by managers and not ignored. Be proactive and follow up with managers to check.
- Don’t expect the employee to sort the situation themselves or tell you if things are not being done correctly. You have to work with them throughout.
- Stay one step ahead and never make assumptions. If you find something that has not been done, or something changes, make sure you document what you have done.
- Always keep a written documented trail of what you have done, when and why.
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