Note: this article was first written by our colleagues at Solve HR, before Solve HR joined Law At Work in March 2020. We have imported this...
An employer found out that making mistakes when dealing with reasonable adjustments can mean you end up with some very costly consequences! In Bannister v The Commissioners for Her Majesty's Revenue and Customs, the employee was asked to move desk from one floor to another because her team was being disbanded. She told one of her managers that she was an alcoholic and that due to her condition, she could not move desks. Following a conversation with a manager, the manager noted that the employee apologised that she had turned a small change like a desk move into a big issue.
An Occupational Health Adviser informed the employer that the employee had suffered from depression for about three years and had become anxious when asked to move desk, but said that she was fit to work. They continued that the employee 'remains vulnerable to further episodes of this condition, the frequency or severity of which cannot be predicted' and that her 'condition is likely to be considered as disabilities because they have lasted for longer than 12 months and would have a significant impact on normal daily activities without the benefit of treatment'. The employee was issued a first written warning for poor attendance. After several Fit Notes stating she was not fit to work because of alcohol dependency, anxiety and depression and meetings with management, the employee was told she would be moving. The employee complained and was told by a senior manager 'in fairness, he was not aware of issues around previous moves and, to be honest, he had no interest'.
In another letter by an Occupational Health Adviser, the employer was told that the employee was 'keen to return to work, however she needs to go back to where she was with her desk prior to the absence and that after a few days settling in she will be able to manage in work'. The employee's request to return to work with her old team for a short period of time before moving to her new team was declined. She was dismissed and subsequently appealed the decision to dismiss her and the decision to not be awarded compensation, but both appeals failed. The Tribunal found that the employee required the 'security of an established routine at the workplace and that any change posed a threat which unsettled her'. She was scared of drawing any attention to her and gave a number of examples of how she reacted to stressful situations, for example, she would not board a busy bus or join a queue with more than three people in the supermarket. It was clear in the Tribunal's view that this requirement to work on a different floor caused a 'serious unsettling effect' on the employee and put her at a substantial disadvantage when compared to people who were not disabled. She wanted to return to work and would have done so but for this requirement to move desk and change floors. The Tribunal noted that the employer had offered several adjustments including a phased return to work, a temporary reduction in hours, the elimination of performance targets and a lighter workload. However, they concluded that they had failed to make a reasonable adjustment by not allowing the employee to return to her original desk for two weeks. She was awarded nearly £75,300 in compensation.
There is a legal duty under the Equality Act to make reasonable adjustments for disabled employees when they are placed at a substantial disadvantage by: an employer's provision, criterion or practice or a physical feature of the employer's premises or an employer's failure to provide an auxiliary aid. Some examples of reasonable adjustments include: adjusting the recruitment process, changing equipment, allowing a disabled person to make a phased return to work making physical changes to the workplace. For a worker to be considered disabled under the Equality Act, they must show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities. A person will meet the disability definition under the Act if they have an HIV infection, cancer or multiple sclerosis, but someone who has alcohol dependency will not fall within under this definition.
As this case proves failing to make reasonable adjustments can be costly so it's important to understand what the law requires and how to minimise any risks to your business.