The lifting of COVID restrictions and drop in COVID infection rates has seen employees who were still working from home return to the workplace either on a hybrid basis or for all their working time. ‘Employers need to keep in mind the impact of this shift on employees’ with disabilities,’ says Kerry Curd, a partner in the employment team with WBW Solicitors.
The impact of the pandemic on some of your employees’ health may only come to light as employees move away from homeworking. Kerry Curd runs through employers’ responsibilities in relation to their employees’ disabilities and key areas to look out for in managing this transition.
What is a disability?
An employee will have protection under anti-discrimination laws if they have a health condition which meets the statutory definition. To satisfy this definition: (1) the employee must have a physical or mental impairment; (2) that impairment must have an adverse effect on their ability to carry out normal day-to-day activities; (3) the effect must be substantial; and (4) the effect must be long-term. Certain health conditions, such as cancer, are also automatically deemed to be disabilities.
Some health conditions may be hidden and knowledge of a disability is not a relevant to the employee having protection under anti-discrimination laws. Employers therefore need to be alert to signs of disability. This could mean, for example, considering whether an employee’s poor attendance or work performance issues could be connected to a disability. An employer may also need to obtain medical evidence or opinion obtain occupational health doctor or other medical specialist to determine whether an employee’s health condition amounts to a disability.
What must employer’s do?
- Take reasonable steps to protect the health and safety of all employees’, including those with disabilities, while working (see the Health and Safety Executive’s The basics for your business guidance).
- Ensure: (1) that they do not treat employees’ differently or work because of their disability (direct discrimination); and (2) no policies, practices and rules have a worse effect on employees with a disability (indirect discrimination).
- Make reasonable adjustments to the workplace or working arrangements to remove or reduce a disadvantage related to an employee’s disability when doing their job.
Employers also generally need to act reasonably so that they do not breach the mutual duty of trust and confidence, which can allow an employee to resign and claim constructive unfair dismissal. Employees who resign due to discrimination can also issue claims for constructive dismissal as part of a discrimination claim.
Employees with disabilities returning to the workplace
Employers should consider the following when an employee with a disability stops working from home and returns to the workplace:
- If any reasonable adjustments are needed to enable their return, including whether anything has changed while the employee was working from home. For example, a condition may have worsened that may require additional reasonable adjustments.
- If reasonable adjustments were in place at home and are still necessary, these may need to be replicated in the workplace. This could include adaptations the employee made to help them work which they may wish to replicate these at the workplace. For example, this could involve an employee with a back problem breaking up the working day with lots of short walks.
- Employees who work partly from home and have special equipment may need to bring the equipment in to work with them. If that is not possible, for example if they have an ergonomic chair, they may need one at home and one at the workplace.
We therefore advise employers to consult with employees with disabilities who are returning to the workplace to make sure that the workplace and working arrangements are ready for the employee’s return. It may also be necessary to extend working from home until equipment or other adaptations are set up.
COVID impact on existing disabilities
The impact of the pandemic on mental health has been widely covered. Lockdowns, isolation and anxiety around COVID can worsen existing mental health conditions. For example, an employee’s depression may have become more severe and they may no longer be able to cope with full-time working and travelling to work. An employee with anxiety may find it very difficult to start commuting again on public transport.
Where an employee with mental health conditions is having difficulties returning to the workplace, employer’s should discuss whether any adjustments can be made. For example, changing working hours to allow them to travel at quieter times may aid their return. Employer’s may also have to consider allowing them to remain working from home, especially in the absence of a strong business reason for insisting on a return to the workplace.
An employee with an underlying health condition may not have been able to be vaccinated, or the vaccine may not be as effective for them. When this happens and the employee is reluctant to return to the workplace for this reason, an employer may need to consult with the employee, carry out an individual risk assessment, consider whether the employee’s underlying health condition amounts to a disability, and seek specific legal advice.
Employer’s should also seek specific legal advice before insisting on any employee returning to the workplace against their will. We can provide advice to ensure that you do not discriminate or breach the mutual duty of trust and confidence between the employer and employee.
Employees may have developed a health condition during the period of working from home. Asking employees about their health and if they have any concerns about returning, should help to avoid new health conditions being missed. As always, managers need to be alert to any signs of mental or physical health conditions that may have a significant impact on the employee.
Widely reported symptoms of long COVID include fatigue and ‘brain fog’ (difficulties with memory and concentrating). On some days, employees may struggle working their full hours and performing to their usual level.
As a new condition, not a lot is known about long Covid. As long COVID appears have the potential to impact on individuals for 12 months or more, it could well satisfy the statutory definition of a disability. Even if it is not a disability, employers may need to support staff with long COVID before moving to deal with sickness absence or reduced performance under the formal absence or capability procedures. Acas has published guidance for employers to help with this process.
It is worth bearing in mind, that long COVID is reported to affect women, people from ethnic minorities and older people more seriously. The general risks associated with COVID is also higher with people from ethnic minorities and older people. Please get in touch for advice if the employee falls within one of these groups, as your treatment of them could also amount to other forms of discrimination, namely sex, race and age discrimination.
How we can help
We can advise employer’s on managing any with employee with health conditions to ensure that they retain them and the employee can work effectively whilst avoiding complaints and claims, including of discrimination. Please contact Kerry Curd in the employment team on 01626 202406 or email KerryCurd@wbw.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.