Employment webinar and podcast: Sickness, disability, and reasonable adjustments

Does having a disabled child extend the protection of disability discrimination?
Yes, there is protection for associative discrimination. However, the duty to make reasonable adjustments requires the employee in question to be disabled.

ACAS guidance suggests extending trigger points as a reasonable adjustment. Would it be a form of discrimination to not consider this in relation to a disability and anxiety around trigger points and escalation of sickness stages?

If it is known that the employee has a health condition or disability, then yes enquiries should be made about what can be done to support them back to work and part of that support may include varying the trigger points for escalation of sickness absences.

Does having a disabled child extend the protection of disability discrimination?
Yes, there is protection for associative discrimination. However, the duty to make reasonable adjustments requires the employee in question to be disabled.

Would neurodiversity meet the disability discrimination/reasonable adjustments criteria?
It can be provided it meets the legal test for disability set out under s.6 Equality Act 2010.

Is it acceptable to ask for reasonable adjustments to be cost neutral?
This does not override the duty to make reasonable adjustments.

If an individual is declared fit to work by internal occupational health team, but is still being signed off as unfit by their GP what do we do? OH do not want to write to the GP as they say they are right.
Where there is more than one medical opinion and the two opinions conflict, it is reasonable to take steps to resolve this conflict. In DB Schenker Rail v Doolan, the ET found that an employer had been entitled to prefer the opinion of an occupational psychologist over that of a doctor, on the basis that the former had a better understanding of the nature of the employee’s role. It is generally reasonable to follow the guidance of OH unless that guidance is clearly wrong.

How long should a temporary redeployment be classed as reasonable adjustment before it is interpreted as custom and practice and created a new role?

It depends upon the circumstances. It may be that a temporary redeployment takes place whilst an internal process is underway, but once that process concludes, there would need to be discussions about either bringing the employee back to their substantive role or look at a permanent redeployment.

Andrew 00:17

Welcome to this podcast from the Hempsons employment team. I’m Andrew Davidson, and I’m joined today by Markus Schober, who’s part of our team. And we’re going to talk to you today about sickness, disability, and reasonable adjustments. We did a full webinar that went on for about an hour, on this topic, and you can go over to YouTube and find this webinar, which goes into these issues in a lot more detail. But today, we’re just going to cover the key points arising out of these topics, and as I say, for more information, please have a look at our webinar on YouTube.

So, I’m going to talk about managing sickness absence first, and then Markus is going to talk about disability and making reasonable adjustments. And I just wanted to give you an overview of how we suggest you manage sickness absence. There’s plenty of guidance out there. You can find plenty of guidance from ACAS in particular, and for those that are NHS employers, you can find good guidance from the NHS employers’ website on how to manage these things. But in essence, the starting point is to think about sickness absence as being, broadly into two categories, short-term absence and long-term absence. And they are quite different things. And so, when it comes to managing short-term absence, the key things from our point of view are making sure that you as an employer understand what’s causing the reasons for short-term absence, what the reasons are, whether there might be some underlying medical conditions or underlying factors in the workplace that’s causing the short term absence and things like return to work interviews, having interventions that have been shown to reduce short term absence. So, any policies should cover off on those key elements.

And then long-term sickness absence is quite a different thing, entirely. Three key things that come up again and again in the guidance and also in the employment tribunal claims. Firstly, the need to consult with the employee on long-term absence and maintain a level of contact with them. Secondly, ensuring that before any decisions are taken, you have up to date medical information. And thirdly, looking at alternatives to dismissal if you are heading towards that point. So, in a nutshell, that’s the way in which you look at short-term and long-term absence.

And then when it comes to, sometimes the inevitable, which is heading towards a dismissal are a few things to keep in mind. Firstly, that the employment tribunal will want to ascertain the reason for the dismissal, and that will vary depending upon whether it’s short-term or long-term absence. But once they’ve established that there is a fair reason for the dismissal, tribunal will then look at the fair process that was followed or whether there was a fair process followed. And in that regard, the key thing is ensuring that you follow general principles of fairness, but also your policy if you have an attendance policy, and make sure that you keep records so that you can justify the decision at a later point if somebody pursues an unfair dismissal claim or a disability discrimination claim. Markus, so you spoke about disability and reasonable adjustments. Do you want to just give us a quick overview of the key points from your presentation?

Markus 03:48

Yes, absolutely. We started with the definition of disability, which comes from section six of the Equality Act 2010, which is that in order to have a disability, a person needs to have a physical and or mental impairment, which is long term and which has a substantial and adverse effect on daily activities. Now we went into a little bit more detail in the webinar as to breaking down that definition in some, automatic, or deemed disabilities as they’re known, and, also in terms of excluded conditions under the Equality Act. Now, a common misconception is that employees have to have a specific diagnosis or condition, but rather, all that is required for the purposes of disability is that you need to meet the legal tests for disability. So, one of the questions that we received during the webinar was or can neurodiversity amount to a disability. And the simple answer to that is it depends if it meets all of the component parts of the legal test, then it can, and if it doesn’t, then it won’t.

Now, in terms of moving forwards, we walked through the essential components of a failure to make reasonable adjustments claim and why it’s important to frankly get it right. And the reason for that is it can spiral into a number of other different types of claim, and there can be overlap with different claims and it can be complex, expensive, time consuming, and quite difficult for all involved. And the thing to bear in mind is that there is no qualifying service required to bring a failure to make reasonable adjustments claim, and there’s no upper limit on compensation either.

Now, we spoke about the definition of disability. We moved on to the second requirement, if we can phrase it as that, to being knowledge of disability. And this is a critical aspect, in the context of a failure to make reasonable adjustments claim. And we looked at the Employment Appeal Tribunal authority of Alam, which shows us that an employer is under no duty to make adjustments unless it knows both that the employee in question is disabled and that the employee is likely to be placed at a substantial disadvantage because of that disability. Now, one of the points we covered in the webinar is that there isn’t a general duty to improve the working circumstances or a general duty to assist a disabled employee. It’s about identifying what the substantial disadvantage in question is and taking steps to alleviate that disadvantage.

Moving forward, we looked at the categories of adjustments under section 20 of the Equality Act, being where a provision criterion or practice, a PCP, puts a disabled person at a substantial disadvantage in comparison to a non-disabled person. We looked at where a physical feature of the employer’s premises puts a disabled person at a substantial disadvantage. So, this looks at things such as where the premises or equipment puts them at a disadvantage. So, there are simple examples you can think of such as a wheelchair user not having access to a ramp. And there are various other examples we covered in terms of stairs, lighting, curbs, toileting facilities, etc. And the final points we covered was in relation to auxiliary aids, which is generally the, I would say, the most straightforward aspect of reasonable adjustments claims. An auxiliary aid is generally something which provides support or assistance to a disabled person. And there are various examples of that that you can think of, such as an adapted keyboard, text to type software, and so on. Now, there was a question that we had received regarding, ‘does the duty to make reasonable adjustments cover an employee’s association with a disabled child’, for example? And there are provisions within the Equality Act which protects individuals for discrimination by association, strictly focusing on the duty to make reasonable adjustments, the reasonable adjustments provisions do not protect a non-disabled individual who seeks an adjustment because of their association with a disabled person.

Now, there were various examples that we looked at, and examples given in the EHRC Code of Practice, which sets out various steps that can be taken by employers which generally will seem to be an adjustment. These can be things such as making adjustments to premises, such as widening a doorway for a wheelchair user; providing information in accessible formats, such as providing communications in braille, for example; or altering a disabled employee’s working hours, or we looked at the example of perhaps adjusting the working hours for an employee who suffers with anxiety so that they do not need to travel in rush hour, this could potentially be a reasonable adjustment.

Now, the final topics that I just want to signpost you to for the purposes of the webinar is some of the reasonable adjustments claims that we looked at. I mentioned earlier that there’s not a general duty to assist the disabled employee, and we looked at the cases of Bagley and Smith to illustrate those points. We looked at common misconceptions. We spoke about knowledge of disability a moment ago, and there’s also a common misconception that I come across that the adjustments have to work in order to be reasonable. Again, we looked at the case of Noor, which shows us that the adjustment does not need to remove the disadvantage entirely. And the case of Foster shows us that the adjustment only requires a prospect of success, i.e it does not need to be a good or a real prospect, it just needs to be a prospect.

There were other areas we covered, such as in the context of redundancy selection, we looked at the case of Dominique, which is a reminder that employers should adjust redundancy scoring, even if it would make no difference to the outcome. We looked at the case of Charles where an employer had failed to make reasonable adjustments for an at-risk employee when that employee’s disability meant that he was unable to attend interviews, and we contrasted that with the case of Hilaire, where the employee was not placed at a substantial disadvantage because of his disability. In that case, it was simply that the employee chose not to attend an interview because he had lost faith in his employer.

Just a final few topics that we covered. We looked at the case of Cordell in the context of costs in reasonable adjustments cases and how it can be, as the EAT puts it, one of the central concerns in considerations in the assessment of reasonableness. We looked at sickness absence policies, which inevitably will overlap with what Andrew has covered, and how it was found in the case of Jennings that it was not a reasonable adjustment to exempt an employee from compliance with its short-term absence policy. And we looked at other examples, such as the case of Whitely, when it comes to looking at the approach an employer should take when applying a sickness absence policy to disability related absences.

And finally, we covered examples of redeployment as we discussed how in the EHRC code it refers to transferring a disabled worker to fill an existing vacancy. However, depending upon the circumstances, employers might actually be required to redeploy a disabled employee even where no vacancy exists. We looked at the case of Randall, which was where an employer was undertaking a reorganisation and accepted that it had a blank slate so far as job specifications were concerned, so, that is partly the reason why it found there was an obligation to create a role in that case, although there’s not usually an obligation to create a role. So, it’s a good case to illustrate the fact specific nature of reasonable adjustments claims. And the final two cases that I wanted to touch upon for the purposes of this podcast was the case of Powell, which serves as a reminder to us that transferring an employee to a new role will generally involve a change to their terms and conditions, so therefore it can’t be done without the employee’s consent. Finally, the case of Rentokil v Miller, which is a key case and I’m sure we will see more of in the future. And this was a case where the Tribunal upheld Mr. Miller’s claim that Rentokil had failed to make a reasonable adjustment where it did not offer him a trial in an alternative role. Now, a Tribunal’s not bound in every case to find that an employer ought to give an employee a trial period. It is fact specific, but it is one that is certainly worth keeping in mind when looking at reasonable adjustments. Andrew, I wanted to hand back over to you as to whether there were any key tips or takeaways that you wanted to touch upon.

Andrew 13:47

Sure, thank you, Markus. And there was one point just to follow on from your comments about the Rentokil case, in the Miller case and the general point, and I just thought it’s worth bringing this out that it seems to me that from an employer’s point of view, what the cases suggest is that if there is, as you say, a prospect of making a difference of minimising or removing the substantial disadvantage, then you should take it. That seems to be a key theme. Do you agree that you should, that if there’s something there that might work? I mean, clearly, if it stands no chance, that’s different. But if it might work, it’s something that employers should explore. Would you agree?

Markus 14:23

Absolutely, I agree with that. And I think that was a part of the Tribunal’s decision making in this case, is that there was a prospect given Mr Miller’s prior experience in this desk-based role that had he been given the chance or the trial period that he might well have been successful in that. They put it down to be a 50% chance of him being successful in that role. So absolutely, I agree with that.

Andrew 14:49

Good, thank you. So, in the questions that we had and in the discussion that we had around it, there were a few themes, and some of them we’ve touched upon already, but it might just be worth just going back over a few of them. One of the issues, which I think is difficult for employers, is the level of contact with people, particularly on long-term sickness. And sometimes you have, don’t you, that the employee doesn’t want to be contacted, and they say they’re not well enough to be contacted. But equally, there can be complaints from employees that they haven’t had contact from their manager, they haven’t been kept up to date with things that have developed in their team, for example, during their absence. And I think contact is a difficult thing sometimes to manage between, you know, not exacerbating an employee’s condition by causing them unnecessary stress, but at the same time, maintaining that relationship. And so that is something that we come across a lot in practice, and I think the only guidance you can really give, is that you’ve got to look at it from a reasonable perspective. And as long as there is some contact – there needs to be contact because they’re still your employee – they might be off sick, but you need to maintain a level of contact, and unless you’ve got medical evidence that says this is going to cause major distress, then my working presumption is that you would have normal, regular contact with the employee. Or at the very least, contact through another party, maybe their trade union rep or whatever. But maintaining a level of contact is difficult and, again, one of the questions we get asked is, who should do that? And I think the answer is it doesn’t really matter as long as there is that regular contact, whether it’s HR or the manager. But it is something that we see in practice, don’t we, Markus, that people sometimes struggle with that issue.

Markus 16:29

Absolutely, yes. It’s a difficult balance to strike. And I can only echo that point in relation to, generally it’s necessary in order to keep up that level of contact. And certainly ACAS advises that an employer and employee should keep in regular contact during their sickness absence. Now, as to who should do it, you’re absolutely right. It doesn’t really matter, I think practically, if there is a point of contact who the employee’s familiar with, perhaps they have a good relationship with their line manager, that would seem to make sense to me in the most general of cases. But as I say, that can be a fact specific question as well.

Andrew 17:06

Yeah, I agree. And the other issue that we come across increasingly, I think, is how to deal with issues around neurodiversity. And you mentioned it in your part about the potential for that to be a disability. I suppose, I mean we know, don’t we, that although the Tribunal don’t really record it in this way, all the evidence suggests that there has been an increase in the number of Tribunal claims around neurodiversity being cited as disability. Just on the knowledge point, I mean, it is difficult isn’t it, in some cases it’s difficult for an employer or rather for an employment tribunal to ascertain when the employer has knowledge. And you mentioned Alam, I think, again, sometimes it’s a practical problem, isn’t it? Because the employer may have enough information to suggest there might be an impairment, there might be some degree of difference, but maybe not enough to give a full diagnosis.

Markus 17:55

Yes, absolutely. It can be a tricky set of circumstances to overcome, to really pinpoint the exact points when an employer had knowledge of disability. It’s not easy. What I would encourage in every case is that an employer avails itself of the support services that are available to it and really try and grapple with the issue of disability and making adjustments, bearing in mind that positive duty to make them. And this can be done by liaising with occupational health, as you touched upon earlier, the importance of return to work interviews is so important for identifying what is the problem and how we can overcome it. So, there are various tools an employer can use to make this complex problem a little bit easier for themselves.

Andrew 18:46

Thank you for that. And I think again, you make the point, which is really important, and is often missed, that it is a positive duty on employees. So, it’s not for the employee to come to you necessarily and say, I have this condition and I need reasonable adjustments. Once you have enough knowledge that there is a disability or likely to be a disability and there’s a substantial disadvantage, then it’s on you as the employer to make sure that you make those adjustments, isn’t it?

Markus 19:10

Yes, absolutely. There’s certainly a two-way street when it comes to the issue of knowledge. And we discussed during the webinar some of the issues you can have with employees who perhaps do not engage with occupational health or do not provide the full story. But I think all of that needs to be balanced against that. It is the employer’s positive duty to make reasonable adjustments and therefore, that’s why it’s so important to get to grips with this issue.

Andrew 19:38

Thank you, Markus. Well, I think that probably brings us to a close in terms of our overview, but just to remind listeners that we have got this full, about an hour webinar, that’s available on YouTube. The link will be in the information attached to this podcast. And it just remains to say thank you, Marcus, for your contribution and, thank you to all our listeners.

Markus 19:55

Thank you.