Perform HQ associate Rhys Wyborn looks at equality and diversity through the COVID-19 pandemic:
New research has recently been published showing that one fifth of disabled employees have had their request to work from home, be furloughed or redeployed during the COVID-19 pandemic rejected.
This article considers the practicalities and legal position in relation to such requests and their refusal.
Dealing with furlough first, whilst an employee (disabled or not) is free to make a request to be furloughed, there is no legal requirement for an employer to agree to this. On the flip side, an employee does not have to agree to an employer requesting to furlough them (although in reality, very few employees will withhold consent, given the unpalatable likely alternatives).
In the case of a disabled employee, they may claim that being placed on furlough is a “reasonable adjustment” that should be implemented by their employer – more on this a little later.
As for working from home, the government guidance has evolved over the course of the pandemic and at the time of writing, the current position in England is that employees must work from home wherever they can reasonably do so.
Of course, this is not possible for some employees and businesses. Clinically extremely vulnerable employees in England are “strongly advised” to work from home and should not to attend their workplace during the lockdown period.
But what if, for example, an employee is required to attend the workplace and wear a mask; some employees will have conditions which could constitute disabilities under the Equality Act 2010 (such as asthma) which make it impossible to wear a mask. What then?
If, in this scenario, an employee is disabled for the purposes of the Equality Act and is doing a job that they could reasonably do from home, it is likely to constitute a reasonable adjustment to allow that employee to work from home.
Similarly, if they could reasonably be redeployed to another part of the business where wearing a mask is not compulsory, a failure to do so could give rise to disability discrimination claims.
The definition of “disability” under the Equality Act is perhaps not what some might think – for the purposes of the Act, a person is disabled if they suffer from a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Employers must bear in mind the requirements of the Equality Act to make “reasonable adjustments” for those employees who fall within the definition of a “disabled person”.
For the duty to arise, the employee (or job applicant) must also be placed at a “substantial disadvantage” in comparison with persons who are not disabled.
So, on the example given above, a disabled employee may argue that a refusal to allow them to work from home (or be placed on furlough, or redeployed) places them a substantial disadvantage to someone who is not disabled.
They are unable to comply with the requirement to attend the workplace and wear a mask and if, as a result, they are placed on sick leave, or laid off (i.e. earning less money than they otherwise would), this could be a disadvantage.
In considering whether an adjustment is reasonable (such as allowing a disabled employee the right to work from home), employers should consider factors such as:-
- The extent to which the adjustment would have helped remove the disadvantage;
- The extent to which the adjustment was practicable;
- The financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer’s activities;
- The financial and other resources available to the employer;
- The availability of external financial or other assistance; and
- The nature of the employer’s activities and the size of the undertaking.
If an employer can demonstrate that it has considered such factors and as a result, cannot reasonably accommodate the employee’s request, this will go some way to successfully defending any such claims which may arise in the future.
In summary therefore, the global pandemic and its knock-on effects on workplaces and individuals has highlighted the issue of disabilities and reasonable adjustments once again.
In terms of the survey, the fact it is suggested that four fifths of employers are refusing disabled employees’ requests, means that there is likely to be a lot of disgruntled employees and potential for litigation. This is of course not to say that those employers have not considered what reasonable adjustments could be put in place and arrived at their decision having taken into account all relevant factors.
Employers will always need to be mindful of any reasonable adjustments that can be made to a disabled employee’s work (be that their place of work, something in the work place, or something else) – what could constitute a “reasonable adjustment” is, after all, almost limitless – as a failure to do so could lead to costly claims further down the line.