The pandemic has impacted virtually every aspect of our lives, potentially changing the way we work and communicate for ever. Employers have had, in many cases, no choice other than to adopt remote working practices that they may have resisted for years or had never contemplated. This has brought benefits for many disabled employees but at the same time, the pandemic has also exacerbated inequalities. This seemingly contradictory position is a result of the fact that all too often ‘disabled employees’ are inaccurately referred to as a homogenous group. It is however, quite the contrary, with employees experiencing unique challenges and as a result, facing different barriers in different workplaces, even when there may also be a number of common shared experiences.
In this Law-Now we explore both the negative and positive aspects the pandemic has had on employees with disabilities. We highlight the legal obligations and the steps employers can take now and in the longer term to support employees with disabilities.
For those who can work from home and are in the fortunate position of working for an employer that will embrace this arrangement, leaps in the use of technology have transformed the workspace in a positive way.
The lack of a commute has made a significant difference by removing challenges around the fatigue experienced by travel, as well as issues associated with workplace access and public transport.
For some, where their home environment allows, the ability to be away from the office has reduced the noise and distractions which can affect concentration. Working in a home environment has also presented the ability for more flexibility in terms of when throughout the day an individual works and enabling effective breaks to be taken in an environment specifically adapted for the individual, once again positively impacting on, for example, fatigue and pain levels.
In a survey carried out in August 2020 UNISON reported that disabled employees working from home during lockdown had been more productive and took fewer days sickness absence in contrast to time spent working in an office. For some employees these are changes that they have requested for years yet it has taken a pandemic to demonstrate that those changes can be reasonably accommodated and to break the pattern of such requests being turned down for fear of ‘precedent setting’ or as a result of a presentism culture.
UNISON has called on the Government to bring in a right to work from home for disabled employees. During summer 2020, Diabetes UK voiced similar views, calling on the Government to give this right to people with underlying health conditions and all employees who are part of the Covid-19 at-risk groups. Although the Telegraph reported in May that Government sources were considering implementing a right to work from home for certain employees at the end of lockdown, no further information about this has been forthcoming. Increasing rights around flexibility and remote working, however, was on the Government’s agenda before the pandemic and it would be surprising if Government support for this area was removed going forward.
Despite the positives that have been identified for many disabled employees and employees with underlying health conditions in terms of new ways of working, the pandemic also has brought a raft of additional challenges and concerns.
According to a report from the disability charity, Leonard Cheshire, 71% of disabled people in employment in March 2020 were affected by the pandemic, either through a loss of income, being put on furlough or being made redundant. The same survey identified that 42% of employers admitted there was a barrier to hiring disabled workers because they would not be able to properly support them through the pandemic, while 20% admitted they would be less likely overall to hire someone with a disability.
The charity, Scope, reported in 2020 that disabled people were feeling undervalued by the way that coronavirus deaths were being reported in the press by differentiating between those with underlying health conditions and those without. This left many disabled people with the impression that the deaths of disabled people did not matter in the same way as the deaths of non-disabled people.
Furlough, reduced wages as a result of being signed off on SSP, potentially greater risks of redundancy, anxiety over cancelled or postponed medical treatment and worry over job prospects are all issues that significant numbers of employees with disabilities are having to cope with. The Office for National Statistics has reported that all well-being ratings of disabled people remained poorer in September 2020 compared with a similar period prior to the coronavirus pandemic; almost half (47%) of disabled people reported high anxiety (a score of 6 out of 10 or higher) in September 2020 compared with less than a third (29%) of non-disabled people. Employers need to be cognisant of the potential impact the concerns mentioned have on their employees’ mental health and ensure that routes of support are well signposted by managers, especially in a remote working environment when communication may be reduced and there is a risk of employees feeling more isolated.
In March 2020 the Government classed certain people with health conditions as clinically extremely vulnerable and they were instructed not to go to work. During this further nationwide lockdown (January 2021), the current advice yet again for employees in this category is that if they cannot work from home they should not attend work.
If adjustments cannot be made to enable an employee to work from home, then according to the latest Government guidance furlough can be offered to those who are “clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus or off work on long-term sick leave”. The guidance has been amended to say that when deciding whether to furlough an employee who is clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus, "an employer does not need to be facing a wider reduction in demand or be closed to be eligible to claim".
There is no automatic right to be put on furlough leave, meaning some employees who cannot attend work due to the pandemic are only entitled to receive SSP at a rate of £95.85 a week. Many employees in this category have felt like they have to choose between their health and their livelihood – with reports that a fifth of disabled people have had their requests for furlough or working from home refused.
The employment tribunals in due course will no doubt be asked to determine, on a case by case basis, whether a failure to place a disabled employee on furlough leave if they cannot work from home, constitutes a failure to make a reasonable adjustment. This will inevitably be a fact specific decision based on the specific circumstances of the particular employee and their role, however, there could be persuasive arguments (especially in light of the updated furlough guidance and the current vaccination programme) that if the alternative to furlough leave is dismissal, such a failure amounts to a breach of that obligation.
What steps can employers take to support their disabled workers now and in the future?
Employers have a duty to make reasonable adjustments for disabled employees under the Equality Act 2010 and a duty to do everything that is reasonably practicable to protect the employee from harm under the Health and Safety at Work Act.
In summary, the duty to make reasonable adjustments arises where a disabled person is placed at a disadvantage that is more than trivial by: (1) an employer's provision, criterion or practice (PCP), (2) a physical feature of the employer's premises, or (3) an employer's failure to provide an auxiliary aid.
From an employer’s perspective, the following points are worth noting:
The duty to make reasonable adjustments is extensive and wide-ranging.
If an adjustment is a reasonable adjustment it must be made.
The duty to make an adjustment, if it is a reasonable adjustment, exists even if the employee does not suggest the adjustment themselves at the time. Employers therefore need to be pro-active in their approach.
To support employees appropriately, employers should engage in an open dialogue with their disabled employees, exploring difficulties they are experiencing and consulting with them about what support/alternatives arrangements can be implemented to remove/minimise the disadvantage being suffered. If in doubt, take advice over whether or not a request may be reasonable.
An employee’s commute should not be ignored and staggered start times and consideration of alterative transport to avoid the use of public transport may need to be considered.
Different disadvantages may be experienced at different points during the pandemic and the assessment of reasonable adjustments therefore must be regularly revisited.
A Covid-19 workplace risk assessment should consider disabled people who are at higher risk and appropriate control mechanisms should be put in place. The HSE specifically recommends that employers should talk to their clinically extremely vulnerable workers “and, where possible, enable them to work from home”. The HSE recommendations also suggests that an employer “…may also be able to offer alternative duties or change working patterns temporarily.”
Sources of Advice and support
The Equality and Human Rights Commission has issued guidance on dealing with disability and Covid-19 for employers (equalityhumanrights.com)
Access to Work, the Government body that provides support for making reasonable adjustments, produced a Covid-19 factsheet setting out what support they can provide around working from home and other adjustments. Grants offered by Access to Work can support employers with the costs of making adjustments, for example, in respect to the provision of specialist technology, taxi fares to work if an employee cannot use public transport safely or the provision of a support worker.
Advice and suggestions for bespoke support can often be obtained from charities and organisations that support people with particular disabilities, such as the National Autistic Society, https://www.autism.org.uk/advice-and-guidance/topics/coronavirus/employment/working-from-home; Mind https://www.mind.org.uk/workplace/coronavirus-and-work/ and the MS Society https://www.mssociety.org.uk/care-and-support/ms-and-coronavirus-care-and-support/work-and-ms
Employers can sign up to the Disability Confident scheme https://disabilityconfident.campaign.gov.uk/ which is designed to support and recognise businesses that are actively inclusive in their recruitment and retention practices.
Finally, the CIPD has produced detailed guidance for line managers on recruiting and managing people with disabilities.
Hold onto the good and keep trying to address the bad
The existing challenges faced, together with the widening gap of inequality caused by the pandemic are not to be underestimated. Whilst vaccines may eventually provide an exit route from the current rules and restrictions, the hope for employees with disabilities is that positive practices that have arisen as a result of the pandemic will be sustained as we emerge from the pandemic – whether that be the new and inclusive ways of working that technology has helped to facilitate, to the development of a culture of trust that productivity can be maintained, or even improved where employees are working remotely. Many workplaces have demonstrated what may have previously been inconceivable levels of innovation in terms of working practices and an openness to new ideas and ways of working. If this can be taken forward it can only enhance the inclusion of employees with disabilities in the workforce.
Our advice therefore is to hold onto the developments that have been a positive experience for both employers and disabled workers, keep inclusion and support for employees with disabilities up at the top of the agenda and maintain an attitude of openness to new possibilities.