COVID-19 and Reasonable Adjustments for staff with disabilities

Disabled worker
Spread the love

At the best of times members tell us their bosses find it difficult to put in place, and keep in place, the reasonable adjustments they need to do their job. They tell us there are many reasons why their adjustments are not kept in place including when their line manager changes.

We are now in the middle of a once-in-a -century event that has far reaching and widespread implications, many of which are unknown. 

However, one of the widespread changes is known and that is that more employers than ever before require their workers to work from home. 

This has thrown up concerns about reasonable adjustments. Below are answers to some of the common questions being asked. 

What does the law say about reasonable adjustments?

Disabled people have a right to reasonable adjustment under the Equality Act 2010. 

The law says an employer only has to do what is reasonable. The questions the employer needs to ask themselves is whether:

  • The way they do things
  • Any physical features of their workplace
  • The absence of an auxiliary aid or service

puts their disabled member at a substantial disadvantage compared with a person who is not disabled.  

The test of what is reasonable is an objective test. It is not just what your member may personally think is reasonable. An employer can consider: 

  • How effective the change will be in avoiding the disadvantage your member would otherwise experience
  • Its practicality
  • The cost
  • The organisation’s resources and size
  • The availability of financial support

The overall aim should be, as far as possible, to remove or reduce any disadvantage faced by your disabled member.

Does an employer need to put in place a member’s adjustments when they are working from home?

Yes, the Equality Act 2010 is the law; the COVID-19 pandemic has not changed that.

All employers have a legal duty under the Equality Act 2010 to proactively make reasonable adjustments to remove, reduce or prevent any disadvantages that disabled workers face. 

This includes when worker is working from home.

What should members ask their employer to do about their reasonable adjustments? 

Reps should encourage and support their members to ask for the reasonable adjustments they need. 

What reasonable adjustments can a member expect to be put in place during this crisis?

While the law has stayed the same, the efforts an Employment Tribunal will consider sufficient to discharge an employer obligation under the law is unclear. There is no case law that will help us understand what employer efforts will discharge their duty.

It is likely an employment tribunal would expect an employer to put in place reasonable adjustments that do not require another person to access a worker’s property. This could be, for example, the installation of software programmes on a worker’s computer or the delivery of specialist equipment that does not require skilled installation, for example a pre-assembled work chair.  

However, with the current government advice on social distancing, it seems less likely an employment tribunal would expect an employer to have specialist equipment professionally installed in a worker’s house. In this instance the health and safety of the workers who would have to install the specialist equipment would outweigh the duty to put in place reasonable adjustments.  

Where an employer is unable to put in place the reasonable adjustments a member needs, you should ask that they are temporarily reassigned/given other work duties they can do until the employer puts the member’s adjustments in place.  

A rep who encounters these issues should seek advice from their head office on how to proceed. It is likely they will need legal advice in order to properly advise their member. 

 What are some of the working from home adjustments members could request?

A member can request;

  • A change to the way the job is done, including when
  • The provision of extra aids or services to do the job

There is no one size fits all reasonable adjustment as each member’s needs are specific, and we know that what will work for one member might not for another and so an individualised approach is needed.

That said there are some common adjustments we are being told have been helpful including;

  • Changing of work hours 
  • Ensuring the member’s specialist equipment is in place
  • Installing specialist software on home computers/laptops

With increased use of video and phone conferencing during home working, what reasonable adjustments could be put in place to support disabled member to communicate with their colleagues?

There is no one-size-fits-all reasonable adjustment as each member’s needs are specific. We know that what will work for one member might not for another and so an individualised approach is needed. 

There are many impairments which could require adjustments to be made in order for disabled workers to participate equally.

Now that most communication is happening via video or phone conferencing, members might need reasonable adjustments made to these methods of communication. 

Remember it is possible for members who are deaf or have a hearing impairment to participate provided the employer puts in place the right support. That could be, for example, using a speech to text provider or providing a specialist phone. It may also be possible for a BSL interpreter to join video conference meetings.

What should I do if an employer is refusing to put in place a member’s adjustments?

Your member should not be penalised while they are waiting for the reasonable adjustments they need to do their job to be put in place. 

If the employer is unable to put in place the reasonable adjustments your member needs, you should ask for your member to be temporarily reassigned/given other work duties that they can do until the needed adjustments are put in place. 

A rep who encounters these issues should seek advice from their head office on how to proceed. 

The TUC believes that while your member is waiting for their adjustments to be put in place, they should continue to be paid their full normal wage and receive all the normal workplace benefits they are entitled to. 

An employer who refuses to put in place a member’s reasonable adjustments, which in the current circumstances could reasonably be expected, could be taken to the Employment Tribunal on the grounds of disability discrimination. 

The Employer has suggested they furlough a disabled member because they do not want to put in place the reasonable adjustments the member needs. Can they do that?

An employer, who furloughs a disabled member because they do not want to put in place their reasonable adjustments, which in the current circumstances could reasonably be expected to be put in place, can be taken to an employment tribunal on the grounds of disability discrimination. 

The worker will be able to claim unfavourable treatment because of disability.  

For more on furloughing see this blog by Tim Page, Senior Policy Officer, RISE TUC. 

https://www.tuc.org.uk/what-are-rules-if-youre-temporarily-laid-off

Does my member have to pay for the adjustments they need at home?

No, the employer is responsible for paying for and putting in place the right adjustments. 

Many employers allow workers to buy supplies and to claim the cost back. It is worth checking if the adjustment, and its associated cost, fall under this policy.  

A member’s adjustments in the office are not the same as the ones they need at home. What should they do?

We know that for many members working from home is a new experience. While others, who have worked from home might, not have done so for this length of time. 

This might mean the adjustments they need are different from the ones they have had in place when they were working on site or in the office. 

If a member is finding that their agreed adjustments are not working for them anymore, they should have a conversation with their manager about putting in place adjustments that will work. 

We advise that, in advance of a conversation with their manager, they consider:

  • The impact of the working conditions on them, given their personal circumstances
  • The barriers that they have/are encountering
  • What adjustments they think will make it easier for them to fully participate

It is also good practice to make a written record of these agreed adjustments. The TUC has produced a Disability Reasonable Adjustments Passport they could consider using for this purpose https://www.tuc.org.uk/research-analysis/reports/reasonable-adjustments-disability-passports?page=0#section_header  You should let your member know they are entitled to have a rep at this meeting to support them. And, if they request it, you should provide that support.