Now is a time of transition as employees return to the workplace either on a hybrid basis or for all their working time. ‘Employers need to keep in mind the impact of this shift on any employees’ disabilities,’ says Zoe Lagadec.
The impact of the pandemic on some of your employees’ health may only come to light as employees move away from homeworking. Zoe runs through employers’ responsibilities in relation to their employees’ disabilities and key areas to look out for in managing this transition.
What is a disability?
Employers should not wait for employees to tell them that they have a disability. Instead, you need to be alert to signs of disability. This could mean, for example, if an employee’s performance is below par and there are signs that they are feeling low, it may be appropriate to explore this with them, rather than moving straight to performance management. The employee may have depression which can be a disability under the Equality Act 2010.
To be protected under the Equality Act 2010, the employee has to have a health condition which meets the statutory definition. This is a physical or mental health impairment which has a substantial and long term, adverse impact on the employee’s ability to carry out normal, day-to-day activities. You may need to ask the employee to attend an appointment with an occupational health advisor for advice.
What are my responsibilities?
In addition to your responsibilities for your employees’ health and safety while working (as set outlined in the Health and Safety Executive’s The basics for your business guidance), employers need to ensure that they do not directly or indirectly discriminate against a disabled employee. An important obligation on employers is to make reasonable adjustments to the workplace or an employee’s working arrangements that help accommodate their disability and allow them to work effectively. Employers also generally need to act reasonably so that they do not breach the mutual duty of trust and confidence, which can allow an employee to resign and claim constructive unfair dismissal.
Existing disabilities
If you are already aware of an employee’s disability, you need to ensure that any reasonable adjustments that were in place at home are still necessary, appropriate and effective in the workplace. Employees who work partly from home and have special equipment will need to bring it in to work with them. If that is not possible, for example if they have an ergonomic chair, they may need one at home and one at the workplace.
Check with the employee if anything has changed while they were working from home. A condition may have worsened that may require additional reasonable adjustments. While working from home, the employee may have developed their own adaptations that help them work and they may wish to replicate these at the workplace. For example, this could involve an employee with a back problem breaking up the working day with lots of short walks.
Two important points with adjustments; consult with the employee and make sure that the workplace and working arrangements are ready for the employee’s return. It may be necessary to extend working from home until equipment or other adaptations are set up.
Covid impact on existing disabilities
The impact of the pandemic on mental health has been widely covered. Lockdowns, isolation and anxiety around coronavirus can worsen existing mental health conditions. For example, an employee’s depression may have become more severe and they may no longer be able to cope with full-time working and travelling to work. An employee with anxiety may find it very difficult to start commuting again on public transport. Requiring them to work full-time from the office may be discriminatory.
You should discuss with the employee whether any adjustments can be made, such as changing working hours to allow them to travel at quieter times. You may need to consider allowing them to remain working from home, particularly if it is hard to justify insisting on a return to the workplace.
An employee with an underlying health condition may not have been able to be vaccinated, or the vaccine may not be as effective for them. If they are reluctant to return to the workplace, you may need to carry out an individual risk assessment. Before insisting on them returning, we can advise you to ensure that you do not discriminate or breach the mutual duty of trust and confidence between you and the employee.
New disabilities
Employees may have developed a health condition during the period of working from home. As part of your return-to-work programme, managers can ask employees if they have any concerns about returning. As always, managers need to be alert to any signs of mental or physical health conditions that may have a significant impact on the employee.
Long Covid
Widely reported symptoms of long Covid include fatigue and ‘brain fog’ (difficulties with memory and concentrating). On some days, employees may struggle working their full hours and performing to their usual level.
As a new condition, not a lot is known about long Covid. If it is likely to have an impact on the employee for 12 months, it could well be a disability under the Equality Act. Even if it is not a disability, employers may need to support staff with long Covid before moving to deal with sickness absence or reduced performance under the formal absence or capability procedures. Acas has published guidance for employers.
It is worth bearing in mind, that long Covid is reported to affect women, people from ethnic minorities and older people more seriously. Please get in touch for advice if the employee falls within one of these groups, as your treatment of them in relation to long Covid could be indirect discrimination.
How we can help
We can advise you on managing your employee’s health conditions to ensure that you retain your staff, they can work effectively and you do not end up receiving a claim for discrimination or constructive dismissal. Please contact Zoe on 0203 858 7965 or email zoe@mulberryssolicitors.com. Mulberry’s has offices in Brighton, East Sussex and London.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
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