Two
landmark decisions in the past month have put the employment rights of disabled
workers at the top of the agenda for employers, according to a leading law
firm.
In
Archibald v Fife Council, the House of Lords ruled that there is a duty on
employers to make reasonable adjustments for disabled people if they become
unable to carry out the job they are in due to their disability.
This
duty includes considering whether it is reasonable to transfer the disabled
person to another vacant post, even if that post is at a higher grade. In
making arrangements for such a transfer, the court said it may be
discriminatory to insist that the employee attend a competitive interview for
such a post.
In
Meikle v Nottinghamshire County Council the Court of Appeal ruled that
constructive dismissal, when the employee resigns because of the way in which
the employer behaves, is covered by the Disability Discrimination Act (DDA).
Michael
Ball, employment partner at law firm Halliwells believes this will lead to an
increase in discrimination claims.
“It
will mean that employers may face a claim for discrimination and unfair
dismissal, where it is alleged there has been a failure to make reasonable
adjustments," said Ball.
"For
example if the employee is not transferred to another job, they will be
entitled to resign and still be able to claim discrimination against the
employer.
“Potentially
of even greater importance, it also sets the precedent that payment of sick pay
by employers are subject to the duty to make reasonable adjustments. Not only
will employers have to make adjustments, but they will have to pay sick pay
under the DDA when they fail to do so, if the consequence is that the disabled
person is unable to work because adjustments have not been made," he
added.
Law
firm McDermott, Will & Emery has produced guidance for employers on both
these issues.
When
considering disabled employees who can no longer do their existing jobs for
alternative vacancies, employers should:
1 Ensure that an assessment is carried out to
identify what reasonable adjustments could be made to the disabled employee’s
current job
2
If no reasonable adjustments can be made to the disabled employee’s current
job, identify other vacancies within the business with similar grades and
grades above and below
3
If the vacancy is of the same or a lower grade, provided the employee is able
to do the job, offer the position to the employee
4
If the vacancy is of a slightly higher grade, the employee is capable of
performing the role and no one candidate is obviously the best candidate, offer
the position to them in preference to non-disabled candidates
5
If the role is of a significantly higher grade, if appropriate, invite the
disabled person to apply in the normal way and treat them in the same way as
other candidates.
Things
to bear in mind when considering whether or not to reduce an absent disabled
employee’s sickness benefit in accordance with a sick pay policy:
·
Ensure that all reasonable adjustments have been made to assist the disabled
employee to return to work. As this may take some time, if an employer suspects
that an absent employee is disabled within the meaning of the DDA, it should
consider reasonable adjustments in good time before the sick pay policy
dictates that sickness benefits may be reduced. Employers should ask all absent
disabled employees if there are any reasonable adjustments can be made to
assist a return to work before reducing sickness benefits
·
An employer which has not made reasonable adjustments which would get the
employee back to work should not reduce sickness benefit even if its sick
policy allows this
·
This decision does not prevent an employer from dismissing an employee who is
unable to work by reason of disability and who is unlikely to be recover
sufficiently to do so (taking into account any reasonable adjustments) within a
reasonable period. Employers must ensure, however, that a fair procedure is
followed.
