One chap following a back injury cannot work in confined spaces, another has had issues with the movement of their wrists and so cannot pack product, and another has Crohn’s disease and so struggles to work away from an office.
More often than not the manager involved tells me they need to make the person redundant as they can’t do their job anymore. But actually it’s not that simple. Firstly because the role isn’t redundant; it’s the individual who can’t do the role anymore so it’s not actually a redundancy situation, and secondly if the individual is classed in law as being ‘disabled’ the company is required under the Equality Act 2010 to make so called ‘reasonable adjustments’. Sadly that’s as helpful as the act gets as it’s only through case law that we are learning what that actually means.
So here are a few pointers and things to consider should this situation occur in your business.
Defining a reasonable adjustment – the key issue here is what is reasonable to expect an employer to do, be that in terms of costs to implement, impact on others, how practical it would be, the ability to retrain, or the opportunity to change a job role. Now let’s be clear it’s not insisting that you create a brand new job, it’s asking you to consider what changes could be made. The size of the company and the resources available also play a big part; a larger company with a number of roles and opportunities will be expected to do more, where as a small company would have a lesser expectation placed on it. This shows clearly what may be reasonable in one situation may not be reasonable in another. It’s all about considering the facts and circumstances at that time.
Defining a disability – an employee may be classed as having a disability under the Equality Act if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. ‘Substantial’ is obviously more than minor or trivial – e.g. it takes much longer than it usually would to complete a daily task like getting dressed or brushing their teeth, and ‘long-term’ means 12 months or more – e.g. a breathing condition that develops as a result of a lung infection, or a progressive condition that gets worse, such as multiple sclerosis. There are a few exceptions to the ‘length’ qualification – the day an employee is diagnosed with cancer or is advised they have an HIV infection they are defined as having a disability. Being an alcoholic is not a disability, nor is having asthma ordinarily. But please note I am not a medical specialist, each case must be considered on its own merits, and often with medical practitioners involvement.
So what can you actually do? There are three requirements of the duty to make adjustments as follows, with examples –
1. Changing the way things are done
- Modifying procedures
- Providing information in an accessible format
- Allocating part of the disabled employees duties to another person
- Altering hours of work
- Transferring to an existing vacancy (where they have the skills or can be trained)
- Adjusting a redundancy selection criteria so someone who takes short periods of absence because of their condition is not penalised
2. Making changes to overcome physical barriers in the workplace. This includes: staircases, kerbs, floor surfaces and paving, car parks, entrances and exits (including emergency escape routes), doors and gates, toilets, lighting and ventilation, lifts, escalators and furniture.
- Widening doors
- providing a ramp for access
- changing size or height of desks
- assigning the employee to a different place to work – be that building, office or location
3. Providing extra equipment or getting someone to do something to assist the disabled person
- so for someone who loses their sight may be providing computer equipment and/or braille readers
- Larger screens for a visually impaired person
- Adapted keyboard for someone with arthritis
- employing someone else to assist the disabled person (this is often funded by government bodies or charities) such as a reader, a sign language interpreter or a support worker.
- Providing additional training or mentoring
It’s all a question though of what, as an employer you are able to do, can do without a huge detrimental impact on the company and at a reasonable cost. Many of the adjustments you can make will not be particularly expensive, and remember you are not required to do more than what is ‘reasonable’ for you to do, and yes it is advisable to discuss any adjustments with the disabled worker, to ensure they are effective.
However, if you do nothing, and your disabled employee can show that there were things that you should have identified and reasonable adjustments you could have made, they can bring a claim against you in the Employment Tribunal, and you may be ordered to pay them compensation as well as make those changes.
In the cases quoted at the start the chap with the back injury had the requirements to go into confined spaces removed from his role, the person with the sore wrists now rotates through the various different tasks to ensure they vary their work and reduce the risk of repetitive strain, and the chap with Crohns still goes out and about but with a list of local supermarkets and public conveniences should he have a requirement. See – all easy things to do and not costly, and keep my clients out of legal bother.
For more help and advice about disability employment issues contact us at www.threedomsolutions.co.uk or follow us on twitter @3domSolutions