How to support an employee who becomes disabled

Author: Lynda Macdonald

Summary

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  • Be willing to take all reasonable steps to enable an employee who becomes disabled to continue working, or, where there has been a period of absence from work, to resume working.
  • Recognise that the duty to make reasonable adjustments to working arrangements and premises to accommodate the needs of disabled employees is a statutory duty and the responsibility is firmly on you, as the employer, to identify and initiate any adjustments.
  • Where a disabled employee is no longer capable of performing his or her own job, consider offering him or her a move to a different job, if a suitable vacancy exists.
  • Consult the disabled employee fully about any proposed transfer, provide all necessary training and consider whether a trial period in the new job may be helpful.
  • Consider making adjustments to the duties of the disabled employee's current job by allocating some of his or her duties to other employees.
  • Consult both the disabled employee and (where appropriate and with the employee's consent) his or her colleagues over any proposal to alter his or her duties and take into account any reasonable objections that may be put forward.
  • Consider adjustments to the disabled employee's working hours, attendance requirements and absence procedures, including adjustments that will allow him or her periods of absence from work to attend medical appointments.
  • Be prepared to consider moving the disabled employee to a different place of work or allow homeworking for a time.
  • Review whether the disabled employee might need to be provided with different tools or equipment for the job.

Introduction

Under the Equality Act 2010, disabled employees are protected against direct discrimination because of their disability, indirect discrimination in relation to their disability, and discrimination arising from their disability. A key duty under s.20 of the Act is for employers to make "reasonable adjustments" to working arrangements, working practices and premises whenever these place a disabled employee at a substantial disadvantage in comparison with employees who are not disabled. Employers must take all reasonable steps to avoid a substantial disadvantage caused to a disabled person by a provision, criterion or practice, or a physical feature. Where an auxiliary aid would avoid a substantial disadvantage to a disabled person, the employer must take all reasonable steps to provide that aid. This article explores the scope of this duty in relation to employees who become disabled and suggests ways in which employers can support such employees.

Reasonable adjustments

Where an existing employee becomes disabled, either gradually as a result of the onset of an illness or suddenly as a result of an accident, the employer must address the issue of what reasonable adjustments could be made to accommodate the employee's needs and facilitate his or her retention in employment. The key objective will be to take all reasonable steps to enable the employee to continue working, or, where there has been a period of absence from work, to resume working, without being at a disadvantage.

It is important to note that the duty to make reasonable adjustments places the responsibility firmly on the employer to identify and initiate any adjustments. It is not up to the employee to propose alterations to working arrangements, although the employer should of course consider any suggestions the employee does make.

Alternative jobs

Where a disabled employee is no longer capable of performing his or her own job, one option is to offer a move to a different job, if a vacancy is available. The viability of this would depend on whether or not the alternative job was one that the employee could reasonably do and whether or not he or she was willing to do it (after training if necessary). It may also be reasonable for the employer to exempt a disabled employee from any internal procedures that are normally applied to internal transfers, for example a requirement to undergo a competitive interview or rigorous selection test.

In these circumstances, there is no obligation on the employer to maintain the employee's existing level of pay or conditions, although his or her agreement to the transfer itself and to any contractual changes would have to be obtained. A transfer without the employee's express consent would constitute a breach of contract as well as unlawful disability discrimination. The disabled employee should, in any event, be fully consulted at an early stage about any proposed transfer.

The employer should provide all required training, including a full induction, and a trial period in the new job may be advisable in order to give both employer and employee the opportunity to review whether or not the new arrangements are working out satisfactorily and whether or not the employee can cope with the new job.

Adjustments to current job

Another possible course of action could be to make adjustments to the duties of the employee's current job to allow him or her to continue working. This may involve allocating some of the disabled employee's duties to others. This might be feasible where the employee's impairment affected only the subsidiary duties of the job, for example if the requirement to perform a particular task occurred only occasionally rather than on a regular basis.

While this type of adjustment may be appropriate, account must also be taken of the impact on other employees of taking on additional duties. In these circumstances it would be advisable to:

  • seek medical advice concerning the disabled employee's ability to perform various elements of his or her job;
  • discuss any proposal to alter the duties of the job directly with the employee with a view to gauging how he or she would feel about it;
  • with the disabled employee's consent, consult other employees whose job duties or workload might be affected by any proposed adjustments to the disabled employee's duties;
  • ensure staff are aware that employers are obliged in law to take reasonable steps to accommodate the needs of disabled employees and encourage them to take a positive attitude towards supporting the employee who has become disabled; and
  • take into account any reasonable objections that the disabled employee's colleagues have before making any final decision on what adjustments to make to the disabled employee's job duties.

Working hours

Another type of reasonable adjustment that may be relevant, especially around the time the employee has become disabled, could be to adjust working hours, attendance requirements and absence procedures. For example, the employer might reasonably:

  • allow the disabled employee more sickness absence than would normally be considered acceptable;
  • allow the employee paid time off to attend appointments for medical treatment;
  • agree to a variation of the disabled employee's working hours, either temporarily or permanently, for example a switch to part-time working, removal of the requirement to work shifts or suspension of any requirement to work overtime; or
  • permit the disabled employee to take more frequent or longer breaks from work where the condition causes him or her to tire easily.

Relocation

If, as a result of disability, the employee can no longer walk or is otherwise impaired in terms of mobility, a move to a different or more accessible workplace may be a suitable adjustment. It may also be feasible to permit an employee who has had a spell of absence due to a disability to do all or some of his or her work from home for a time in order to facilitate a return to full-time working. In London Borough of Hillingdon v Morgan EAT/1493/98, the Employment Appeal Tribunal judged that the employer had discriminated against the employee by refusing without good reason to agree to her working at home for a temporary period to allow her the opportunity to readjust to work.

Equipment and accessible formats

Another type of adjustment might be the provision or adaptation of the tools or equipment used in the job in order to make it possible for the employee to perform the job despite his or her changed capabilities. Section 20(5) of the Equality Act 2010 specifically requires employers to take all reasonable steps to provide any auxiliary aid that would prevent the employee being put at a substantial disadvantage compared to non-disabled colleagues.

Section 20(6) of the Equality Act 2010 requires employers to take reasonable steps to provide the employee with information in an accessible format, where this would prevent a disadvantage. This could involve providing screen-reading software for an employee with a visual impairment, or arranging for a sign-language interpreter to attend meetings if this would assist an employee with a hearing impairment.

The list of "reasonable adjustments" that an employer could make to accommodate the needs of an employee who has become disabled is infinite. The employer should adopt a positive attitude to the prospect of adjustments, discuss the possibilities with the disabled employee and give full and fair consideration to all reasonable possibilities. In addition, consideration, patience and support should be shown to the employee to help him or her to adjust to his or her new circumstances.