Q: Recent research reveals that people with MS are suffering disturbing levels of workplace mistreatment. So what can and should employers do about it?
A: Jennifer Walton, associate at Irwin Mitchell says…
Employers have a legal duty to ensure that disabled employees are not discriminated against at work. This includes ensuring that they are not treated any less favourably because of their disability or because of something arising in consequence of disability (without objective justification).
It means they must ensure that a provision, criterion or practice is not applied across the workforce that disadvantages job applicants or employees with a shared disability without objective justification and that applicants or employees are not subjected to harassment related to their disability. Employers also have a duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage.
Employers are generally held liable for the actions of their employees and will therefore be held liable for any discriminatory acts by employees, unless they have taken reasonable steps to prevent that discrimination from occurring.
As a minimum, employers should ensure that they have implemented an up to date Equal Opportunities Policy, which set out workplace rules for all staff to follow to encourage equality and diversity and try to stop discrimination in the workplace.
Employee’s attention should be drawn to this policy upon induction, and at regular intervals, with training provided for staff and management as appropriate to the size and resources of the organisation. Make it clear what behaviour is acceptable, with clear examples, and detail what happens if the rules are broken.
Maintain a commitment to tackle and prevent discriminatory behaviour, bullying and harassment and ensure that any other policies, such as absence, recruitment and redundancy procedures, are reviewed to ensure that they do not inadvertently have a discriminatory effect and actively seek to promote equality of opportunity.
Where a provision, criterion or practice applied by an employer, or a physical feature of the employer’s premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, the employer has a legal duty to make reasonable adjustments to avoid the disadvantage.
Where a disabled person would, but for the employer’s provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled, the employer must take such steps as are reasonable to provide the auxiliary aid.
An auxiliary aid would something which provides support or assistance to a disabled person, including specialist equipment such as an adapted keyboard or text to speech software.
Other adjustments that might be considered reasonable might include:
Extending the trigger levels in an absence management policy, to recognise that a disabled person may require more time off work than a non-disabled person because of their illness;
Altering hours of working, allowing more flexible working hours, additional breaks, part-time working, home working, or specific shift patterns to meet particular rest requirements or travel needs;
Allocating some of their duties to another person, or transferring the disabled person to another existing role or premises, whether on a permanent or temporary basis;
Allowing time off for rehabilitation, assessments or medical treatment.
Acquiring or modifying equipment, such as an adapted keyboard, speech to text software or specialist chairs/desks etc.
Providing supervision or other support. This could include providing a support worker, or arranging help from a colleague, for someone whose disability leads to uncertainty or lack of confidence.
Modifying performance-related pay arrangements. For example, where a disabled worker paid by output needs frequent short additional breaks during the day, a reasonable adjustment might be for the employer to pay an agreed rate for these breaks.
When should the adjustments be made?
Employers should not wait for the disabled employee to request reasonable adjustments themselves. Once they are aware, or ought reasonably to be aware of the disability and any potential disadvantage, the employer should take steps to discuss any potential reasonable adjustments with the employee.
The aim of a reasonable adjustments is primarily concerned with enabling the disabled person to remain in or return to work with the employer, or to enable disabled people to play a full part in the world of work. Whether any particular adjustment is deemed to be reasonable will depend on a number of factors and there is no duty to take measures that would impose a disproportionate burden on the employer. Factors that should be taken into account, include;
The extent to which the adjustment would have ameliorated the disadvantage.
The extent to which the adjustment was practicable.
The financial and other costs of making the adjustment and the resources available to the employer (including any external financial assistance that might be available), and the extent to which the step would have disrupted the employer’s activities.
The nature of the employer’s activities and the size of the undertaking.
Because of the unpredictable nature of a condition such as MS, for example, it may be that the adjustments that are required need to be varied from time to time, and therefore it is important that employers meet with the employee regularly to monitor and review their requirements, get updated medical opinion if appropriate and make any further reasonable adjustments as necessary.