Reasonable adjustments: proactive vs reactive

Balancing the personal challenges of working in the current climate against the demands of work means that issues concerning reasonable adjustments arise time and time again.

If an employer does not properly manage, consider and permit reasonable adjustments, there is a significant risk that employees may suffer from occupational stress.  In the more serious cases, employees may suffer harm to their mental health which can lead to long term sickness and presenteeism. Where there is a complete breakdown in the relationship between employer and employee, the employer could also be faced with a claim for occupational stress and injury.

The following questions therefore require careful consideration:

• When should an employer consider and permit reasonable adjustments to best protect the wellbeing of the workforce?

• What is a “reasonable adjustment” in the current circumstances? 

This brief helps answer these questions so that employers can protect its employees and the business/organisation.

Principle of reasonable adjustments

An employer has a duty to make modifications to an employee’s place of work or system of work where it is likely that the employee may suffer harm to mental or physical health should such adjustments not be made.  The purpose of the adjustment is to assist the employee in overcoming any actual or potential impairment and to remove the disadvantage faced.

The adjustments must be “reasonable” and not too onerous for employers to facilitate.

The legal framework

There is no question that an employer has a duty to make reasonable adjustments within the workplace or in relation to the working practices to help employees who suffer from stress and more serious mental health problems (as well physical impairments). 

The duties arise under the common law (through established legal precedents set by the courts), and from statutes such as the Health and Safety at Work Act 1974 and the Equality Act 2010.

Common law duty to make reasonable adjustments

It is well established legal precedent that an employer has a duty to take reasonable care of the health and safety of its employees in all the circumstances of the case so as not to expose them to an unnecessary risk.

This duty will extend to an employer taking reasonable and proactive steps to make reasonable adjustments where there is a foreseeable risk of injury to physical and mental health. 

Therefore an employer should not wait until there is actual harm or disability before considering whether reasonable adjustments should be made.

Where an employer knows or ought to know of a particular risk and failure to act may cause or lead to eventual harm, an employer needs to be proactive by:

• Assessing the risk
• Acting upon the results of risk assessment and considering whether reasonable adjustments are necessary

There is a plethora of information available in the public arena which undoubtedly confirms mental health is being impacted by the pandemic. Therefore all employers are “on notice”. This is a factor that courts are likely to consider in future litigated cases.

Statutory duty under Health and Safety at Work Act 1974

Section 2 (1) of the Act confirms:  “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

The same principles apply as per the employer’s common law duty of care.  The employer is also under a statutory duty to take reasonable and proactive steps to make reasonable adjustments where there is a foreseeable risk of injury to physical and mental health. 

The above points are re-enforced by the HSE’s guidance:

“It is an employer's duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employers must do whatever is reasonably practicable to achieve this.

This means making sure that workers and others are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace…”

Statutory duty under Equality Act 2010

Where an employee has a medically recognised disability under the Equality Act 2010, the employer is under a duty to make reasonable adjustments in accordance with section 20 of the Act.

The Act confirms a person has a disability if the person has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.

Impairment will be long-term if it has lasted for at least 12 months, or it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the employee affected.

In the current context of the pandemic a mental impairment could be something such as difficulty in concentrating due to concerns over the virus or even stress caused by home-schooling and working.

Where the duty arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual's disadvantage.

An employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.

What is “reasonable”?

This is often the most difficult aspect to determine. It depends on:

• The specific role of the individual
• The impairment
• The adjustment needed
• The size of the organisation and the resources available to the employer. As a general rule of thumb, the larger the organisation the greater resource it will have to allow reasonable adjustments. For example, a large FTSE 100 company would have the finance and resource to alter their working practice to remote working. A smaller high street accountants firm may not have the same resource
• Whether the reasonable adjustment would have a negative impact upon the core business/organisation and wellbeing of other employees

When considering reasonable adjustments, the employer and/or senior management making such decisions should consider whether the business/organisation has the finance and resources available to agree/permit such adjustment. If it does, will such adjustment negatively impact the business or other employees? If the answer is no to both questions, then the employer should consider the adjustment unless there are other good reasons for not permitting the adjustment. The decision making around reasonable adjustments should be documented.  

What type of adjustments?

The type of adjustments which may be required will depend upon the needs of the business/organisation and the demands placed upon the employee. The reasonable adjustments should facilitate employees being in a position to continue with their work whilst dealing with issues which may hinder their performance if such adjustments are not permitted.

The following are examples of “reasonable adjustments” which courts will expect employers to consider:

• Flexible working hours During this pandemic, flexible working should be considered to help employees manage personal circumstances such as home schooling or carers responsibilities and to allow for sessions with GPs or therapists
• Change to contracted hours “Pre-Covid” working hours may be too much or too little. This may act as a stress trigger. A change in contracted working hours may become necessary and could be offered as a means of preventing stress
• Time-out Paid or unpaid leave could be considered to allow employees time to deal with personal circumstances and prevent harm to mental health
• Additional support with workload Management could also consider relieving the employee of certain responsibilities and distributing them amongst other employees. This requires careful consideration to avoid other employees becoming overburdened by the additional work
• Additional temporary recruitment This should be borne in mind where redistribution of work amongst the existing workforce may not be suitable
• Working environment The current guidance from the government is that unless you are a critical worker “you can only leave home for work purposes where it is unreasonable for you to do your job from home”. So long as the business/organisation is permitted to remain open, some employees may wish to go into the usual place of work for their mental health and social interaction. Employers should give this careful consideration and set out clear guidance
• Phased return This will be appropriate where employees have returned from illness or from time-out
• Additional equipment Those who are now working from home due to the pandemic may be concerned that they do not have suitable equipment to work. This can lead to additional pressure and stress. Employers should consider arrangements to equip employees with work equipment to allow them to work from home. This may involve allowing equipment to be purchased and charged to the business/organisation, or arranging for office equipment to be delivered to home addresses.

The above is not an exhaustive list.

Summary

The pandemic is creating many issues for employers and employees. It should not be forgotten that whilst the work roles and responsibilities may have remained the same, our personal circumstances have changed.  Our “base point” has shifted due to the pandemic. This will have an impact as to how we are able to perform in our jobs.

If employers do not properly manage the current situation, there is a real risk that pressure placed on employees will rise and lead to stress. In more serious cases, continuous pressure could result in harm to mental health.

Employers can be caught out by believing that the duty to make reasonable adjustments arises only once the employee has an impairment under the Equality Act 2010.  Employers are also under a duty to take proactive steps to consider reasonable adjustments before an impairment has arisen.  This is particularly so where the impairment is foreseeable, in that it is likely to arise if the employer does not make reasonable adjustments.

There is evidence to suggest cases of occupational stress and injury to mental health have risen due to the pandemic. This trend is likely to continue until the virus is brought under control and we begin to resume our previously normal way of living.

It follows that there is likely to be an increase in claims brought against employers for occupational stress. Courts will be taking a closer look to see what policies and procedures employers have put in place to minimise the occurrence of occupational stress. This will include the employer’s approach to reasonable adjustments. Was the employer proactive? Or was the employer reactive?

There is little doubt that the more proactive the employer is, the better chance it will have of minimising occupational stress and consequential claims.  The business/organisation will also stand a better chance of surviving and thriving during these testing times with a healthy workforce.

Communication is key. Whatever decision the business/organisation takes, it should be documented and preserved.

Should you require any further information regarding this brief, please do get in touch.

We are presenting another webinar in March 2021 to discuss occupational stress risk assessments and claims prevention methods. Further information will follow shortly.

Watch our recent online panel discussion Occupational Stress and Injury in the Covid-19 era and Beyond