Businesses across the nation have seen a dramatic change in methods of working as a result of the coronavirus crisis. To continue operating effectively, many companies have allowed the majority of their employees to work from home. But remote working raises issues that now need to be considered more closely. This includes ensuring that this method of working does not discriminate against disabled employees.
The Equality Act
A disability is one of nine protected characteristics under the Equality Act 2010. A person is disabled if they:
- have a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The Act prohibits direct disability discrimination, discrimination arising from disability, indirect disability discrimination, harassment relating to disability and victimisation.
A disabled employee may benefit from home working for several reasons, including a lack of commuting and being able to work in the comfort of their home, which has likely been adapted to suit their needs. This can include adaptations such as a specific style of keyboard or voice activation software.
A cornerstone of the Equality Act is the employer’s duty to make reasonable adjustments in the workplace. This is to accommodate those with disabilities or physical or mental health conditions, and to ensure they are not substantially disadvantaged when doing their jobs.
Reasonable adjustments include:
- changing the recruitment process so a candidate can be considered for a job;
- doing things another way, such as allowing someone with a social anxiety disorder to have their own desk instead of hot-desking;
- making physical changes to the workplace, like installing a ramp for a wheelchair user or an audio-visual fire alarm for a deaf person;
- letting a disabled person work somewhere else, such as on the ground floor for a wheelchair user;
- changing their equipment; for instance, providing a special keyboard if they have arthritis;
- allowing employees who become disabled to make a phased return to work, including flexible hours or part-time working; and
- offering employees training opportunities, recreation and refreshment facilities.
In respect of the second point, anxiety has come to the forefront more recently and a person suffering from it can feel worry and nervousness about something that is intangible. Employers should be mindful of the ways in which they can effectively assist employees who suffer from anxiety and are working from home.
In terms of social anxiety disorders, where a provision, criterion or practice is applied to everyone but also puts certain individuals at a disadvantage, it is possible for a claim to be made for indirect discrimination if discrimination can be proven. On the flip side, this discrimination can occur even where the individual concerned is not required to comply with the provision, criterion or practice.
In Roberts v North West Ambulance Service, Mr Roberts suffered from a social anxiety disorder and his workplace had a practice of hot-desking. Because of his condition, he was exempted from this practice and provided with his own desk. However, he argued that he was put at a substantial disadvantage because of the fact that, on occasion, he found someone else sitting at his preferred desk when he arrived at work, causing him stress.
The first tribunal dismissed all the claims but it was remitted back to them for another review. The tribunal then found that Roberts had indeed been disadvantaged, but that the employer had made reasonable adjustments in the circumstances. Roberts disagreed and appealed. However, the Employment Appeal Tribunal rejected his appeal and upheld the decision. Nonetheless, employers need to be careful to ensure reasonable adjustments are made to accommodate anxious employees.
Employers should consult with their disabled employees candidly about their needs and do what they reasonably can to assist and ensure they are not put at a disadvantage through inaction.
Risk assessments should be undertaken to ensure employees have a safe home working environment. Staggered hours is another method to ease the burden on disabled employees.
Finally, employees should be aware that disabled employees may not be able to use certain types of technology. For example, deaf employees would struggle with Zoom meetings – a sign language interpreter may be required as well as a completely different approach to meetings.
Jonathan Rennie is a partner and Nicky Beach a trainee solicitor at TLT