Managing employees’ return to work – duty to make reasonable adjustments

Last week in Friday’s programme we flagged the article that has appeared in Outlaw on managing shielding UK employees' return to work by Anne Sammon and Sue Gilchrist. They make the point that this is an issue which is directly impacting on employers now and the importance of communicating directly with these individuals and conducting the necessary risk assessments. They also deal with managing employees who remain reluctant to return, or simply refuses to do so, and they flag how this ties in with the employer's duty to make reasonable adjustments. So, for example would it be a reasonable adjustment to allow an affected employee to continue shielding? It is an issue that employers are now grappling with. I had the opportunity of running this past Amy Hextell, one of our team of lawyers who has been advising on this. She joined me by video-link from her home:

Amy Hextell: “In some cases we've got issues at the moment for employers with employees who have been asked to come back to work and they might have no reasonable grounds for refusing to come back. I think employers need to be really mindful of the fact that for those employees who have got serious health conditions, which might mean that they haven't been in the workplace. So they've either been shielding the government scheme, or even if they've not been shielding, you know, they may have other health conditions that make them particularly vulnerable or place them at particular risk of coronavirus. Employers need to remember that simply because shielding has come to an end doesn't mean that it's all back to normal and they can come back to work - there's still a duty to consider and make reasonable adjustments. That might include things like, for example, allowing an employee to carry on working from home. It could include making changes to their duties or changing their hours. So for example, if somebody is in a customer-facing role but they're reluctant to come back to work and have to do that, it may be a reasonable adjustment to change their duties so that they're doing something that perhaps doesn't put them in that particular scenario. I think it is difficult for employers in particular at the moment because you may well be in the case where you are dealing with two employees, for example, who have both been either off work shielding or working from home, but now the employer wants them to come back to work and they may have similar or the same health condition, but be feeling very differently about it either themselves or be receiving different medical advice. So it's not unreasonable to suppose that an employer might be in a situation where you've got two employees with different medical advice about what is needed to get them back to work. So we as employment lawyers are really encouraging employers at the moment to be proactive about this because it is a duty that's placed very firmly on employers and not on the employee, to talk about adjustments with their employees, think outside the box possibly about different ways of working. It may be a reasonable adjustment to allow someone, you know, if they can't work from home, but equally, they're not able to come back into the office, it may be reasonable to consider allowing them some unpaid leave for a period of time. So all of these things are things that employers are going to have to face into at the moment and on top of all of this, I think you've got the added difficulty at the moment of mental health and distinguishing perhaps between those employees who feel a little bit nervous or anxious about returning to work in a sort of normal sense, if you like. So, I think the pandemic has probably affected lots and lots of people in the way that the uncertainty of it as caused us to feel anxious or uncertain, and distinguishing that then from employees who have got a really very much more serious mental health condition which actually means that coming back to work is going to be a real problem for them and in that latter scenario, again, the duty to make reasonable adjustments might arise. So, our advice to employers at the moment is keep talking to your employees, try and engage with them. If you are putting in place adjustments or measures to help support them at the moment, make sure that you're reviewing those regularly and then taking medical advice, and also legal advice as well, because the duty to make adjustments is a difficult one and I think what we found in in these uncertain times is that it has become even more tricky to sort of understand what may or may not be reasonable. So, talk to your employees, get some medical advice and talk to us as well.”

Training – reasonable adjustments course

Staying with the subject of reasonable adjustments, a reminder that next week, on 23 September, we will be hosting a training course on this area. It is called “Reasonable adjustments for mental health and stress at work” and is a virtual session, online, a half day course comprising three 50 minute sessions running from 10am to 1pm. It is aimed chiefly at HR professionals and you can register for a place directly from our website which is where will find further details of the course and its aims. You will see there that we confidently predict that by the end of the course you will be able to understand most of the situations your line managers are likely to face and you’ll have a clear idea of the "dos and don’ts" when it comes to discussing and assessing the reasonable adjustments that can be made for mental health conditions. Key to this is a realisation that, like many aspects of discrimination law, what is required is flexible thinking by managers and a realisation that everyone’s needs are different and so they should be assessed on an individual basis – so avoiding a blanket approach. Amy Hextell again:

Amy Hextell: “I think the duty to make reasonable adjustments is one that employers often struggle with even in normal times because it requires an employer to treat a disabled employee actually in a more favourable way than anybody else and I think that it can be quite easy for employers to fall into the trap, without meaning to, so with perfectly good intentions, but the trap of thinking well in order to treat everybody fairly we have to treat everybody the same but actually the duty to make reasonable adjustments is sort of the opposite of that. So where you have got somebody who is disabled and that duty is triggered, you may well be having to treat them differently to others in order to achieve that fairness overall. So I think that's a definite area where reasonable adjustments. and the pandemic in particular, could cause some difficulty. In terms of other dos and don'ts for employers, particularly I think, as regards talking to their employees about mental health the pandemic has caused everybody to feel anxious and of course, we're feeling uncertain and of course we don't know what to expect or quite what the workplace is going to be like and so minimising the impact that this may have had on some people. So I think it is recognising that, for some people, this is more than simply feeling a bit nervous about coming back to work or working. It is a lot more than that and therefore you may be into the territory of requiring to make adjustments for them. I think ways of overcoming that and helping employees are, if you are expecting two people to come back into work, if you're able to, I don't know, share a video or even pictures or a description of what the workplace looks like, or exercise some flexibility around people's working hours so that they're not having to travel in peak times, for example, on public transport. Those sorts of things might help alleviate some of the concerns that the employees have, and engaging with them early about that should, hopefully, help reassure them that that actually as an employer you're going to be doing the right thing and if people are having to come back to work they are being supported to do so in a safe way.”