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Reasonable adjustments
[ch 3: pages 29-31]Employers are required to make “reasonable adjustments” for disabled workers under Section 20 of the EA 2010 and any dismissal for disability-related sickness absence (see page 63) is likely to be discriminatory unless the employer has done this. Employers must take steps to accommodate a disability in order to reduce or eliminate the disadvantage that worker would otherwise suffer.
Reasonable adjustments are limited to those that prevent a provision, criterion or practice (PCP) or feature of the premises from placing a disabled person at a substantial disadvantage in comparison with people who are not disabled. A report by disability charity Scope, A million futures, argued that many employers appear to be failing in their duty as around a third (32%) of respondents to its survey said they were not able to get the changes to their work area or work equipment that they needed.
Absence management procedures may also need adjustment. The TUC guide Representing and supporting members with mental health problems at work, says that procedures should allow for separate recording of absence related to a person’s disability, including where that disability is related to mental ill health.
There is also a role for additional disability leave, whether formal or informal. It an help employees and employers to plan for any regular attendances, such as counselling appointments that have to take place during work hours.
HM Revenue & Customs introduced a provision called Disability Adjustment Leave (separate from disability-related sickness absence) which provides “reasonable paid time off from work for disability-related assessment, treatment or rehabilitation”, generally when the individual was otherwise fit for work. The Highways Agency has set out a comprehensive range of adjustments that might be applicable to employees with mental health problems, including:
• rearranging responsibilities within a team, for example, exchange a single demanding project for a job consisting of a number of smaller tasks;
• transferring the employee to another job;
• part-time working, job-sharing or flexible working hours; and
• additional support and a period of adaptation during changes of work organisation.
It also points out that “occasionally, people with mental health problems experience difficulties with concentration and/or memory”. Relevant adjustments may include providing partitions or reducing noise in the working environment, getting the line manager to provide written instructions or even making use electronic reminder solutions. Later starts in the morning might also be appropriate in view of possible side-effects of medication.
However, while employers may have good written policies, some union reps report still having to ” fight tooth and nail” for them to be properly implemented in practice.
The Employment Appeal Tribunal (EAT) ruled in 2013 that the duty to make reasonable adjustments does not end when a worker goes on sick leave:
Mr Olenloa worked for the North West London Hospitals NHS Trust in its stroke unit. He suffered from a disability (adjustment disorder with mixed anxiety and depressive reaction) that led to him going off sick.
While absent he lodged a grievance complaining that the trust had failed to make reasonable adjustments to enable him to attend work and do his job, such as a mentor or counselling; ongoing support and monitoring of his mental health and workload; adequate staffing levels in his department; reallocation of some of his duties and redeployment or a sabbatical when his condition began to resurface.
The trust argued that the majority of the complaints listed in his claim were out of time. The complaint to the tribunal had not been brought until after three months’ sick leave and its obligation to make reasonable adjustments ceased when Mr Olenloa went on sick leave. However, the EAT found that although each decision needed an examination of all the facts, the duty to make reasonable adjustments does not end when a worker goes on sick leave.
Olenloa v North West London Hospitals NHS Trust UKEAT/0599/11
https://www.tuc.org.uk/sites/default/files/extras/mentalhealth.pdf