During our recent webinar on Reasonable Adjustments, we received several questions via the chat facility that we will address in a couple of blogs over the next few days.
- What would happen if an employee tells their manager that they have a disability, but the manager does not inform anyone else about this?
As we mentioned on the webinar, an employer is only under an obligation to make reasonable adjustments if it knows, or could reasonably be expected to know, that an employee has a disability and is, or is likely to be, placed at a substantial disadvantage as a result.
If an employee has told their manager that they have a disability then the starting point is that the employer will almost certainly be deemed to know of this too, even if this information is not in fact passed on to anyone else within the business, such as HR/OH, etc. This is supported by the Equality and Human Rights Commission’s (EHRC) statutory Code of Practice, which says, “If an employer’s agent or employee (such as an occupational health adviser, a HR officer or a recruitment agent) knows, in that capacity, of a worker’s or a potential applicant’s disability, the employer will not usually be able to claim that they do not know of the disability and that they therefore have no obligation to make a reasonable adjustment.”
However, all these questions depend on their own facts. The bigger the organisation, the further any given manager may be from any position of real responsibility for the employee. It may be just a job title to mark fractional additional seniority but no actual managerial authority. Alternatively, the employee may confide in their manager on the express basis that their disclosure goes no further, especially if the disability is a mental health condition not immediately visible to others. We do not consider that an employer “ought reasonably to know” from the disclosure to the manager something which the manager had been told clearly was not to be passed on internally.
Employers therefore need to ensure that where information about a disability/potential disability comes in via different channels, there are procedures in place for bringing this information together and further steps taken to investigate this. Managers should ideally receive training on what to do in this situation. That training ought to include encouraging the employee to tell HR (or allow the manager to do so) and also to think hard and early about what they seek from making the disclosure. What are they asking or hoping will happen as a result? Is it something they want now or merely an insurance policy for the future? If the employee asks the manager not to mention it further, they need to be made aware that it is very unlikely that anything will change.
- What happens if an employee does not agree to an adjustment, such as a phased return to work?
The first step would be to find out why the employee does not agree to the adjustment. Presumably the recommendation of a phased return to work has been made by the company’s medical/OH advisers or the employee’s GP to facilitate the employee’s return to work as soon as possible? Does the employee think they are ready to return to work full-time? Alternatively, do they think they are not yet ready to return to work at all? It is very important to discuss proposed adjustments with an employee and obtain their views and input on any suggestions. It may also be necessary for the company to take further advice from OH/medical advisers in light of what the employee says.
Certainly it would not automatically be appropriate to take the employee at their word. It may be that they are afraid of looking weak in front of management or colleagues, or of earning a reduced salary. It may be that their medical condition itself stands in the way of full awareness of the limits of their own actual capabilities. Allowing someone to return to a working environment which may have contributed in some way to their difficulties without addressing the underlying issue first may not be a failure to make reasonable adjustments (because the employee had refused to accept any adjustments), but could still certainly be grounds for a personal injuries claim if the problems recur.
Clearly, if the employee refuses, the company cannot force them to agree to the adjustment, but if the employee’s refusal means that they continue to be absent from work and there are no other reasonable adjustments that can be made, this may mean the company has to consider whether dismissal on sickness grounds is appropriate. Do ensure you keep adequate records of what has taken place in case your approach is ever challenged before an Employment Tribunal.
- Can an employee submit a flexible working request for reasonable adjustments? If so, how should this be managed? Should the employer keep the flexible working and reasonable adjustment processes separate and distinct? Should the reasonable adjustments process take priority or should both be run in parallel, with clear documentation to avoid overlap?
There is no requirement to keep the flexible working request and the reasonable adjustments processes separate and distinct. It is possible, and indeed usually preferable, to deal with them both at the same time. As per the Acas guidance on flexible working requests, if a disabled employee makes a flexible working request related to their disability, the employer must follow both the statutory procedure for flexible working requests and the law on reasonable adjustments when making its decision in relation to the request.
Although the requirement to consider a flexible working request and the duty to make reasonable adjustments arise under different pieces of legislation and place slightly different obligations on an employer, it should be possible to satisfy them both at the same time. In both cases the employer is looking at broadly the same question – is there some good reason why the working arrangement which the employee seeks will not really work? That starting-point question is not affected by why the employee is making the request, as that comes a little later.
For a flexible working request, the “good reasons” are those listed in section 80G of the Employment Rights Act – essentially, any circumstances where there is a material adverse impact on the business through quality, output, cost, staffing, etc. But even if section 80G would permit the employer to refuse the flexible working request, the next question is whether it would nonetheless be a reasonable adjustment, the difference being the greater degree of cost or inefficiency which the employer is obliged to tolerate under the Equality Act.
Flexible working (in some form or another) is a commonly-sought adjustment and Tribunals will closely scrutinise an employer’s reasons for rejecting such a request. This does not mean that an employer has to agree to an employee’s request, but if flexible working could be a reasonable adjustment then rejecting it may lead to a discrimination claim under the Equality Act 2010 even if it has complied fully with the statutory procedure for handling flexible working requests.
