Compliance | Absence, disability and reasonable adjustments: The view from an employment lawyer

By Kay Needle, Early Intervention and Rehabilitation Expert at Generali UK Employee Benefits

Fear and disconnection seem to reside at the heart of the combined problems of rising absence and ill-health related economic inactivity in the UK.

And that applies to both employers and employees. Employees are afraid to disclose health conditions, particularly mental health struggles, while employers are fearful of contacting employees on sick leave or taking any action that might lead to a complaint or a tribunal claim.

These are topics that we come across regularly in our discussions with Group Income Protection clients. So it’s perhaps unsurprising that this complex area also represented a top of the list priority when we asked our HR clients what webinar topics they’d like us to focus on. With the help of our guest speaker Crowley Woodford, a Partner at Ashurst LLP, we recently hosted such a webinar. Please feel free to contact us for the full 40-minute recording.* To whet your appetite, here are some key excerpts.

Kay: One of the most common challenges we get questions about is managing sporadic, repeat absences. That can often be more disruptive to a business than isolated periods of lengthy absence. But it might reflect that you have an employee that’s making every effort to continue working with a health condition, so employers need to be aware of the potential pitfalls for discrimination. With all that in mind, when an employee is off sick periodically, what steps should an employer be taking?

Crowley: Absence takes up a disproportionately large amount of my working time, in my practice as an employment lawyer. And every issue that I'm dealing with has some sort of ill-health component to it. So, this is a really important topic.

Periodic sickness absence can sometimes be more difficult to deal with than block absence; certainly from an employment perspective. The key thing is to lay a paper trail of all the steps that you take.

Firstly, it’s important to get the full picture. Is it linked to anything? Is there a pattern to what's happening? For example, is it in response to excessive workloads? Is the reason for each absence the same? Or are different explanations given?

As an employer, you must consider all these aspects, then try and discern whether there is an underlying health condition. And that onus is on the employer, it's not on the employee to tell you. So, if you can see a pattern, call it out.

Equally, if you suspect that absences are not genuine, again look for patterns. Often we find a recurring pattern where absences happen on Mondays and Fridays. Again, that's something you shouldn't shy away from calling out. You need to have a conversation, to help determine the genuineness of the absence.

It’s important to talk to the employee directly, because it’s not enough to simply rely on Fit Notes, or on minimal correspondence when they’re phoning in sick. You need to be proactive.

Kay: Where is that paper trail heading? What are you ultimately trying to determine?

Crowley: All of that ‘full picture’ information will help you discern the million dollar question; namely, ‘is that person disabled?’

At the beginning of a sickness absence journey, that's a very difficult thing to work out. But it’s important to bear in mind the definition of disability under the Equality Act 2010. By way of a reminder, it's a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out day-to-day activities.

And with mental health conditions, determining what those day-to-day activities might be is important. Is it a lack of focus? Is it how they interact with colleagues? Is it an inability to follow instructions? Or to keep to normal hours? Just to give a few examples.

Each component of the definition of disability matters. For example, is the impairment having a ‘substantial’ effect on the person's ability to carry out day-to-day duties? That's a real battleground in litigation.

Secondly, is it ‘long term’? By that, we mean one of two things: either the employee has been off sick for 12 months or more; or the prognosis is that they’ll be off for 12 months or more.

These elements of the definition help you determine whether an individual should be considered disabled and, accordingly, what obligations are triggered. And how much risk or liability you might face if you get it wrong.

Whether disabled or not, it's important to take all the duty of care, trust and confidence steps that you would take normally to minimise a grievance. But, clearly, if the individual is not disabled, the employer doesn’t face the same level of potential exposure. If they are disabled, lots of other obligations kick in, including reasonable adjustments, which we'll talk about.

And just a final comment from me, why is all this important? Well, it's obviously important for the health of the employee. But if you look at it from the employer's perspective, there’s also the potential risk and liability that runs alongside. And unlike unfair dismissal, which is a capped liability, what we're talking about here, if you get it wrong, is potentially uncapped liability.

Kay: So, let’s assume the employer has done all the duty of care steps and kept a paper trail. Through this, they determine that an employee is disabled under the terms of the Equality Act 2010. What obligations does the employer have in terms of making reasonable adjustments?

Crowley: It’s important to first understand the purpose of a reasonable adjustment. And that is to create a level playing field between an individual with a disability and an individual without a disability. That’s important to keep in mind, because it also helps inform what type of adjustments are necessary.

Broadly speaking, there are three scenarios in which reasonable adjustments become a requirement. The first is where there's a provision, criteria or practice applied by the employer, that puts a disabled person at a substantial disadvantage compared to a non-disabled person.

The second is where a physical feature related to work or the workplace puts a disabled person at a disadvantage.

And the third is where the absence of an auxiliary aid would put the individual at a substantial disadvantage.

Kay: The natural next question is, what is a reasonable adjustment?

Crowley: The clue is in the name; it must be ‘reasonable’. A lot of clients that come to me have a very high expectation of what is required of them in their duty to make reasonable adjustments. So, what is reasonable?

There are certain factors that an employment tribunal would take into account when they look at what an employer should be doing.

Firstly, what's the effect of the adjustment that you're proposing? To what extent is it practicable for the company to implement that adjustment? What’s the cost of the adjustment? That said, it’s important to not get too focused on cost, because the size of the organisation and, accordingly, what a tribunal might reasonably expect, also plays in to this. Certainly, for a larger company - a multinational company - the cost should not be a significant factor in all of this.

Also, it’s important to consider the resource available. There could be other staffing issues, for example. The nature of your company's activities also might have an impact on the adjustment.

So, if you're saying ‘no’ to a reasonable adjustment, it's important that you leave the paper trail that I was talking about earlier, as part of your risk mitigation strategy.

The employee doesn't need to input on reasonable adjustments. Even if they say they don’t need any adjustments, the legal obligation sits with the employer. So, it's important that you go through that process, regardless of what the employee might say.

Some things you might also want to consider, especially in the context of mental health and potential adjustments, would be workload, physical environment and communication. So for example, in terms of workload, that might mean flexible hours, breaks, modified hours, phased return, help with workload etc.

In terms of physical environment, depending on the mental health impacts, you might want to consider noise, quiet space, workstation setup, work from home is also a popular one.

And in terms of communication, is there a different way that person needs to communicate? Is it predominantly in writing? Do they need regular check-ins? Do they need a work buddy?

You should be going through all this, calibrating against what they're saying and leaving that paper trail to evidence everything you've considered, what you’ve discounted and why. And then, more broadly, ask yourself: have you complied with your obligation for reasonable adjustments?

*To access a free recording of the full webinar, entitled ‘Reasonable adjustments & disability discrimination: the lowdown’, please email [email protected]

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