Disability is considered a protected characteristic under the Equality Act 2010 and therefore employers have a responsibility to ensure that disabled employees are not at a disadvantage in the workplace compared to their colleagues, and to make reasonable adjustments where possible. This is crucial to create an open and inclusive working environment which benefits an organisation’s culture, as well as its reputation and ability to attract a diverse workforce with the right skills. This is also a legal requirement and can help employers to avoid costly legal bills if a tribunal deems their actions to have been discriminatory or that they have failed to make reasonable adjustments to the workplace. This article explores two recent cases which highlight how employers can find themselves in a tribunal and gives some practical tips around how to avoid this.
Reasonable Adjustments
A case that highlights the breadth and extent required of reasonable adjustments designed to support an employee to return to work is examined in Daniel Barnett’s Employment Law Bulletin.
An employee of JobCentre Plus had suffered a long period of absence that fell into the category of disability. The employee then took a fit note from his GP, which recommended a phased return to work on reduced hours over a period of three months, to his employer. However, he also suggested that the return to work place should be over a period of up to 26 weeks.
JobCentre Plus proposed a plan that would allow the employee to build up his hours over a period of 13 weeks but he refused, stating that he would not return to work unless JobCentre Plus extended the timeframe. JobCentre Plus did not accept this and dismissed him so the employee raised an employment tribunal claim, stating that JobCentre Plus had failed to make reasonable adjustments under the terms of the Equality Act.
The original tribunal agreed and found that JobCentre Plus had failed to meet its obligations to make reasonable adjustments by not considering the extended period for the return to work plan. However, this decision was reversed at the EAT.
The EAT stated that the tribunal had been mistaken in finding that the disadvantage to the employee had lain in the requirement for him to work instead of the requirement for him to work his contractual hours. Given that fit notes often provide a time period, the EAT decided that it isn’t always necessary for employers to guarantee to extend the timeframe. It was suggested that, if the employee had continued to suffer a disadvantage at the end of JobCentre’s return to work plan, a separate decision could have been made on the reasonable adjustments available at the time and under those circumstances.
You can read the full article here: Disability discrimination – reasonable adjustments.
What can we learn?
- Employers have a duty to consider reasonable adjustments to the workplace to ensure disabled employees are not disadvantaged. These adjustments could be put forward by a line manager, the employee or a medical expert, although the legal requirement is to only make adjustments if they are considered ‘reasonable’ and feasible for the organisation.
- In this case, the medical advice recommended a phased return to work plan to cover a period of 13 weeks, whereas the employee suggested extending this period of time to 26 weeks. The employer took the decision that a reasonable adjustment that they could put in place would be the 13 week return to work plan, rather than extending this to 26 weeks.
- Employers are not always obliged to extend or guarantee to extend the timeframe as requested by the employee, however this should be reviewed with the employee near to the end of the plan to understand if this needs to be extended depending on whether the employee continues to be at a disadvantage.
- It is important to maintain regular contact with an employee throughout a return to work plan to ensure you are supporting them as best you can, and to understand what further reasonable adjustments you may need to make to ensure they are not disadvantaged.
Disability Discrimination
Case Study: Financial Conduct Authority (FCA) v Employee
A case that demonstrates the importance of employers considering disability and how employees may be at a disadvantage in people management processes is highlighted in a recent article published by People Management.
An employee of the FCA took an extended period of absence from work in 2015 due to surgery, and then subsequently a yearlong break from work. The employee notified his line manager in January 2017 stating concerns that he may have chronic kidney disease, and, soon after, submitted a fit note from his Doctor stating that he had, ‘renal problems under investigation’. This recommended amending his working hours to six hours per day across four days per week for the following eight weeks.
The employee proposed to his line manager that he work from home on Mondays and Fridays, and rest on Wednesdays, and also requested to be taken off ‘case G’. After discussions with HR, his line manager agreed to the amended working arrangement but did not agree to him being taken off case G.
The employee then applied for a vacancy which was a more senior position but was unsuccessful. The person who filled this vacancy was due to project manage case G, however this did not happen, and the employee was requested to continue to hold this responsibility, despite not being successful in the promotion. The employee clearly relayed to his seniors that he felt uncomfortable leading the case.
It was then requested that the employee draft a board update on case G however this was described as, ‘disappointing’ by a more senior colleague. In April, the employee provided a fit note from his Doctor which stated that his renal disease was still under investigation and that his condition was causing him, ‘extreme tiredness’. This recommended that he work six hours per day across four days per week, and from home as much as possible. His line manager said that he could continue to lead case G but it would not be feasible for him to continue his usual full time role on reduced hours.
The employee and the business continued to clash over his involvement in case G until he took sick leave in June after he was diagnosed with chronic kidney disease and was suffering symptoms such as fatigue and poor concentration, impacting his daily role. This was evidenced in an Occupational Health report which he provided to his employer.
When the employee returned to work in February 2018, he was invited to an annual performance appraisal meeting to review his performance before he went on sick leave. He was given a rating of ‘below standards’; his reluctance to manage case G and poor quality of work were cited as the reasons for this.
The employee brought claims of direct discrimination and indirect discrimination, as well as failure to make reasonable adjustments, against the FCA. The claim of direct discrimination was upheld as the tribunal considered that the employee was treated unfavourably due to his impaired performance, caused by his chronic kidney disease. The claims of indirect discrimination and failure to make reasonable adjustments were dismissed.
What can we learn?
- It is crucial that employers consider how disability can affect all aspects of an employee’s performance in their role and ensure that they do not underestimate the impact of the condition or symptoms.
- Any impact should be carefully considered when making decisions around an employee’s performance to ensure that their disability does not mean that they are treated unfavourably compared to their colleagues.
- It is advisable that employers always ask further questions around an employee’s health if it is felt their performance might be suffering, to understand if this is having an impact. This will help the employer correctly manage the situation moving forwards and avoid costly claims.
Read more: A Complete Guide to Managing Employee Absence
Employment law round up: Discrimination claims at tribunal
If you’d like to talk to one of our consultants about your own HR matters, please contact the team on office@fitzgeraldhr.co.uk or 01271 859 267.
