Paralympics Rio 2016: what can employers learn?
Author: Simon Fennell
Applies to: England, Wales and Scotland
Disability rights advocates say the disparity between the financing and support that the Olympics and Paralympics receive reflects the inequality that occurs in workplaces every day. What obligations are owed by employers and what help is available?
The duty to make reasonable adjustments
Under the Equality Act 2010, employers are obliged to take reasonable steps to ensure that any aspect of the employment environment (practices, policies, premises etc), do not put disabled people at a substantial disadvantage when compared to their non-disabled colleagues. The steps that have to be taken are known as reasonable adjustments.
A failure to give consideration to and make any necessary reasonable adjustments is an act of discrimination which is capable of remedy through the employment tribunals where the compensation available is potentially unlimited.
The question of what is reasonable is difficult to answer as it will be determined by the particular circumstances of the employee and the resources of the employer. The reasonable adjustment will seek to remove the disadvantage but that does not mean that it has to be the most expensive or even most effective available solution. For example, an employer who requires an employee with mobility problems to work on the top floor would not be expected to fit a lift but would be expected to consider the viability of the employee working on the ground floor instead.
The adjustment must be designed to overcome the disadvantage - a disabled employee cannot request a change to their terms and conditions of employment and argue that it is a reasonable adjustment if there will be no impact on the overall situation. The whole point of an adjustment is that it enables an individual to return to work, an adjustment which is not focused on this will not be reasonable. This was confirmed by the Employment Appeal Tribunal in Salford NHS Primary Care Trust v Smith.
In the case of O'Hanlon v Commissioners for HM Revenue & Customs the Court of Appeal confirmed that it was not a reasonable adjustment for an employer to maintain sick pay to an employee on long term sick leave when the contractual entitlement had expired - the adjustment would ease financial pressures but would not overcome the problems of getting back to work that were caused by the condition. In that case the Court commented that disabled people should not be regarded as 'objects of charity' as this may act as a disincentive to return to work.
An extension of sick pay however should not be confused with safeguarding pay for an employee who has to take a role with reduced scope as we previously reported.
Where an adjustment is proposed and there is a dispute as to whether or not it will provide a workable solution, the reasonable employer will trial the measure and monitor the outcome.
But it's too expensive
Some adjustments may be expensive and if your organisation is large, the expectation will be for you to spend a bit more money than smaller employers to find a solution. However, some financial assistance is available when implementing adjustments through the publicly funded Access to Work scheme.
Access to Work was created to assist employers with the costs associated with adjustments and can provide funding towards additional travel costs, manual aids, adapting equipment and workplace support.
To be eligible for help from Access to Work, a person must:
- have a disability or long term health condition that has a negative effect on their ability to do their job;
- have a mental health condition and need support in work;
- be over 16 years old;
- be in, or about to start, paid employment (including self-employment);
- normally live and work in Great Britain; and
- not be claiming Incapacity Benefit or Employment Support Allowance once they are in work.
- Explore the precise nature of the problem so that you can target a solution;
- always ask your occupational health adviser for tips on what adjustments you could be making;
- engage with the employee to get their views;
- explore all external funding routes;
- use trial periods - if there is concern from either party that a proposed adjustment is unworkable, it should be trialled (where practical) and objectively assessed;
- document those adjustments that have been considered and record how/why they have been discounted - ideally with evidence.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.