During our recent webinar on Reasonable Adjustments, we received several questions via the chat facility. Here are our outline answers.
- Is there anything an employer can do if a reasonable adjustment (paying full pay for reduced hours) that was only ever intended to be temporary has (by mistake!) gone on for much longer (12-18 months)? Can it amend this?
Yes, but care should be taken in how this is handled to minimise the risk of any claims.
Before making any change, the employer would need to be confident that it is no longer reasonable for it to continue to make the adjustment. The courts have accepted that the duty to make reasonable adjustments is not a general duty to assist a disabled person and that, as a general rule, it is not a reasonable adjustment to pay an employee for work that has not been done – the only exception may be where the employee’s inability to work full hours is due to the employer’s prior breach of the duty to make reasonable adjustments.
What has been said to the employee? Was it made clear to them at the outset that the adjustment was intended for a temporary period? If so, this should hopefully make it easier from a practical point of view to make the change, as the employee has clearly benefited from the employer’s mistake and should not take issue when the arrangement comes to an end. Was it genuinely an oversight (as in, nobody thought about it) or did someone make a deliberate but erroneous decision to keep the arrangement going, and if so why? We will leave aside for now whether there is any scope to recover any overpayments (probably not worth going there in the circumstances)!
If the temporary nature of the arrangement was not made clear to the employee, then more care will need to be taken in unravelling it. As we are talking about pay, the employer should be careful how any change is implemented to avoid not only a disability discrimination claim but also claims of unlawful deductions from wages, constructive dismissal, etc.
The safest approach would be to have a meeting with the employee to explain the situation and seek to agree the change and when it will take effect. If the employee is not willing to agree to this then the employer would have to consider either unilaterally making the change or going down the dismissal and re-engagement route. As both of these options come with legal risks, we would recommend that the employer seeks advice before doing either.
The employer should also ensure it tightens up any processes and procedures to ensure such a thing does not happen again.
- Are we obliged to make reasonable adjustments for an employee who is currently working full-time at a client’s site and claims that the commute is causing them stress and anxiety?
A couple of points to flag. First, the duty to make reasonable adjustments under the Equality Act 2010 only applies if an employee is disabled. If this employee has no previous history of stress and anxiety, this is unlikely, without more, to amount to a disability. Having said that, you have clearly been put on notice that the employee is struggling and you should therefore make further enquiries about their health before making any decisions, e.g. a referral to your OH advisers.
Also, even if the duty to make reasonable adjustments is not triggered here, it would clearly be good practice to consider what adjustments (in the non-legal sense) could be made to support this employee if that would mean they stay in work and do not go off sick.
If the employee is disabled for the purposes of the Equality Act 2010 then the next step would be to identify the relevant provision, criterion or practice (PCP) and the precise nature of the disadvantage which it creates for this employee by comparison with its effects on the non-disabled. As we mentioned at the webinar, an employer is not under a duty to make reasonable adjustments simply because an employee is disabled – the duty only covers disadvantage that the disabled employee suffers compared to non-disabled employees as a result of the employer’s PCP. The circumstances in which the duty to make reasonable adjustments is triggered are, therefore, narrower than many employers think. In this case, for example, if we say that the PCP is the employer’s requirement for the employee to attend the client’s site on a full-time basis, it would be necessary to identify the aspect of the employee’s disability which means they are put at a substantial disadvantage by this requirement.
Assuming this next element of the test is satisfied (lots of assumptions here!), the employer would then be required to consider whether there are any steps that could be taken to remove or reduce any disadvantage suffered by the employee. This may involve, for example, having discussions with the client to see if it would be possible for the employee to attend the site on a less regular basis or possibly work flexible hours to enable them to commute outside peak commuting hours, etc. Whether or not those steps are reasonable would depend on a number of factors, such as whether taking them would be effective in preventing the substantial disadvantage, the practicability of the step, etc. As we mentioned on the webinar, the Equality and Human Rights Commission’s (EHRC) Code of Practice sets out the types of factors that will be taken into account when deciding what a reasonable step is for an employer to have to take.
We have seen an increase in queries from clients over the last 12-18 months concerning employees who say that they are unable to comply with return-to-the-office mandates because they have a disability and that the requirement to attend the office puts them at a substantial disadvantage compared with non-disabled employees. Such employers have had to go through a similar thought-process to avoid the risk of disability discrimination claims. For example, in Pryce v Accountant in Bankruptcy [2022], a Scottish Employment Tribunal held that an employer had failed to comply with its duty to make reasonable adjustments when it refused to allow an employee to continue to work from home on a permanent basis. The policy of requiring attendance in the office twice per week amounted to a PCP which caused Pryce a substantial disadvantage due to his anxiety which a non-disabled person would not suffer. The employer could not demonstrate adverse impacts enough from Pryce’s homeworking to justify that requirement. The Tribunal said that in the circumstances it would have been a reasonable adjustment to continue to allow him to work from home. Although this was only an Employment Tribunal decision (and therefore not binding on future tribunals) it provides a useful example of the approach that Tribunals are likely to take in such cases.
