Many employers are currently grappling with how to implement hybrid-working. How does the duty to make reasonable adjustments fit into this new landscape?
Giving greater flexibility to employees generally could lull many employers into a false sense of security. Surely, giving more leeway to everyone will help across the board? It might but the duty to make reasonable adjustments is a specific legal obligation owed to disabled employees who face a substantial disadvantage in the workplace. It’s not possible to take a one-size-fits-all approach.
1. Think outside the box
Mention disability and certain scenarios are more likely to spring to mind, however the legal definition of a disability can encompass a wide range of experiences.
The law defines disability as an impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. This impairment can be either mental or physical.
Countless studies are indicating the COVID-19 pandemic has had a significant negative impact on mental health. According to a Mental Health Foundation study. In early April 2020 nearly three-quarters of the population (73%) stated they were coping (very well/ fairly well) with the stress related to the pandemic dropping to 64% in February 2021. It’s therefore likely that the number of people suffering from a disability within the legal definition has risen.
It could be that the relevant situations are more diverse than anticipated. For example, in Mrs Daley v Optiva (2020) – a preliminary hearing to determine the issue of disability – the ET found that, despite the employer’s doubts, the symptoms of menopause did in fact qualify as a disability protected under the Equality Act.
The question is not the medical label given to a person’s condition, but whether the impact on their lives meets the legal threshold.
2. Evaluate your new arrangements
The duty to make reasonable adjustments is most frequently triggered when a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage compared to staff without disabilities.
So, a new hybrid-working policy is itself a PCP – are there any elements that might need to be tailored even further for particular individuals?
The duty is to make reasonable adjustments to mitigate substantial disadvantage, so employers are only obligated to go as far as they consider reasonable in all the circumstances. Employers should think it through and document the conclusions, communicating clearly and empathetically with the people involved. If there is no consideration given to the issue, it will be hard to argue that a thoughtful, proportionate approach has been adopted.
3. Address your culture
Disability discrimination can take various forms. A disabled person may be treated unfavourably because of something arising in consequence of their disability – and if so, this will be discriminatory even if the employer did not actually know they were disabled but arguably should have.
An open culture, where employees feel safe disclosing their experiences, is crucial. Otherwise, employers could risk a tribunal having to decide whether they could reasonably have been expected to know what was going on.
Employers have a lot to think about in the transition to the new normal. Keeping sight of the needs of disabled employees must remain high on the list.
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