Recently published research has revealed that one-fifth of disabled employees have had their request to work from home, be furloughed or redeployed during the COVID-19 pandemic rejected.
Here we consider the practicalities and legal position in relation to such requests and their refusal.
Can employees request to be put on furlough leave?
While an employee (with a disability 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.
However, 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.
Do employees have the right to work from home?
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. However, this is not possible for all 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.
For those businesses where it’s not possible for employees to work from home, they may require their employees to attend the workplace and wear a mask. However, some employees may have conditions which could constitute disabilities under the Equality Act 2010 (such as asthma) which make it impossible to wear a mask. So what happens in this scenario?
If 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.
What disabilities are covered under the Equality Act 2010?
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.
More information and guidance on the definition of a disability under the Equality Act 2010 can be found on the gov.uk website.
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.
For example, 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. If they are unable to comply with the requirement to attend the workplace and wear a mask and therefore as a result, they are placed on sick leave or made redundant, this could be classed as being at a disadvantage.
Guidance for employers when considering adjustments for disability
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.
The impact of COVID-19 for employees with a disability
The global pandemic and its knock-on effects on workplaces and individuals have highlighted the issue of disabilities and reasonable adjustments once again.
In terms of the survey results, 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 therefore the potential for litigation.
Employers 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 workplace, 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.
We’re here to help
If you have any queries about making reasonable adjustments or any other employment law-related topic, our employment team can help – contact Ewan Carr for guidance and support. Alternatively, get in touch online or visit our employment solicitors page to learn more.
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