WHAT IF I DON’T KNOW MY EMPLOYEE, OR THE PERSON I AM RECRUITING, HAS A DISABILITY?
You are not subject to the reasonable adjustment duty if you do not know, and could not reasonably be expected to know, that an individual has a disability. However, once the disability has been disclosed to you as an employer you have a duty to look at what reasonable adjustments might be implemented.
DO I HAVE TO MAKE MY PREMISES DISABLED FRIENDLY EVEN IF I AM NOT THINKING OF RECRUITMENT?
The reasonable adjustment duty on an employer is not ‘anticipatory’. So you are not expected to provide a range of adjustments to your premises in anticipation that one day you might employ a person with a specific disability. However, the built environment of newer premises will have been constructed with some of the needs of disabled people in mind.
DOES THE DUTY TO MAKE REASONABLE ADJUSTMENTS APPLY TO A DISABLED INDIVIDUAL OR TO DISABLED PEOPLE GENERALLY?
In the case of employers, whether a duty arises will depend on the circumstances of each individual case. There is no duty owed to disabled people in general in an employment context.
WHAT IF I GET TAKEN TO A TRIBUNAL OVER A REASONABLE ADJUSTMENT?
A job applicant or employee who believes they have been unlawfully discriminated against because of disability can lodge their claim with an Employment Tribunal, usually within three months of the alleged act of discrimination taking place.
The Tribunal will hear evidence from both the disabled person and from the employer.
If you find yourself in this situation, you would have the opportunity to explain why you did not think it was reasonable to make an adjustment. For example, your defence might be that you did not have the financial resources, or did not think that an adjustment would actually enable the disabled person to do the job in question.
A decision is made in the light of the particular circumstances of each disabled person and each employer. To enter a tribunal when you have not sought to do anything at all would be a breach as you are required by your duty to also seek out all alternatives.
CAN I FIRE SOMEONE FOR MISCONDUCT IF THEY HAVE A MENTAL HEALTH PROBLEM OR DISABILITY THAT’S AFFECTING OTHER STAFF?
Employers may have to carry out a difficult balancing act where the behaviour of an employee with a mental health issue starts to have an impact on other staff. The courts sometimes place a high threshold on how people with serious mental illnesses should be treated in the workplace.
A decision last year that involved an employee who was suffering from paranoid schizophrenia is a case in point. The individual was on medication when he returned to work, but subsequently (in accordance with his doctor’s advice) stopped taking it. His symptoms returned and he sexually assaulted two female colleagues. Unsurprisingly, the employer decided that the employee was guilty of gross misconduct and dismissed him. However, the court decided that the dismissal was unfair because the employer had not considered whether the employee, given his mental illness, was culpable for his actions.
None of this means that employers cannot dismiss employees who physically assault others, but it does show that if employers are aware of a serious mental health issue with one of their staff they should proceed with care.
One particular area of risk for employers is employees who have had a breakdown that required psychiatric treatment. If the employer is aware of this there is a chance that the individual is treated as ‘damaged goods’, and therefore there is a significant risk that they will be discriminated against on their return.
Alternatively, if their working environment causes them to have a second breakdown, the employer can find itself at the end of a personal injury claim with an employee saying that they cannot work again and seeking a high sum in damages. While not common these circumstances do crop up, particularly in high-pressure environments such as investment banking.
Examples of reasonable adjustments:
Adjustments for a disability do not have to cost the earth or require employers to make major changes to their workplace environment or policies and procedures
They can be cheap and simple.
Provide a quiet room for people to take a quite break if needed.
Provide a nearby parking space.
Provide a adjustable work chair
Assign a work buddy
Adjust work start or end hours
Introduce a work sharing scheme. (It may be that someone can do a job perfectly well but needs someone else to take the post to the post room for them)
Have better lighting in the office, or allow workers to bring in their own lamp.
Reasonable adjustment is about finding an alternative way to help an employee get the job done so its important to think outside the box to find solutions.
Its very important to remember reasonable adjustments have to be made and maintained.
Employers can also get help through the Access to work scheme
What is Access to Work?
Access to Work is a specialist, government-financed disability programme. It covers England, Scotland and Wales and can give grants towards extra employment costs. A different system is run in Northern Ireland.
Access to Work can help fund things like the cost of specialist equipment and alterations to premises or a working environment to make it more accessible.
Although payments are often made to employers to help pay for support provided to the disabled employee, it is the employee who has to apply for the grant. You can therefore read about the scheme in more detail in our ‘help for employees’ section.
You can also find an Employer’s Guide to Access to Work Factsheet on GOV.UK.
Please note that the Equality Act 2010 places a duty on an employer to make reasonable adjustments for disabled employees. Access to Work funding cannot be used to support these adjustments.
Access to Work will also not fund items which are regarded as standard equipment, standard business costs or standard health and safety requirements. This means that any item which would normally be needed to do the job, whether a person is disabled or not, will not be paid for.
Bernadette Bruckner is a partner at MSBHelp.com – the online counselling, training and education portal for employers – supporting mental health in the workplace.