Q I am a site manager for a national chain of cafes, and a member of my staff was recently involved in an accident that resulted in her losing one of her hands. She wants to return to work but our site cannot easily accommodate her disability without some major adjustments. Can we relocate her to another, better-equipped site?
A Where employees are disabled under the Disability Discrimination Act 1995 (DDA), employers are under a duty to make reasonable adjustments to assist them. One of the situations in which the duty arises is where a physical feature of the employer’s premises places the disabled employee at a substantial disadvantage compared with employees who are not disabled, as in your case.
The duty is not such that you have to make reasonable adjustments to the employee’s current place of work. The DDA itself gives, as an example of a possible reasonable adjustment, “assigning the disabled employee to a different place of work”. Case law has also confirmed that an employer is entitled to move a disabled employee to a different location to facilitate the making of reasonable adjustments.
But it is good practice to first consider whether any adjustments can be put in place at the employee’s existing place of work. Keep a record of the adjustments you have considered at the current place of work, and of the reasons why these are not “reasonable”.
As you have decided it is not feasible for any adjustments to be made at the employee’s current workplace, discuss with her whether she would be willing to move to the other site. This is going to depend on the location of that site and the travel arrangements, which you may choose to help her with. If she agrees to move, confirm the agreement in writing as a change to her terms and conditions of employment.
If she is unwilling to move, you need to consider other sites or other roles at her current site. The more you can offer (even if she turns it down), the more reasonable you will be viewed by a tribunal, should she bring a discrimination claim. You would not be obliged to maintain current pay rates if not applicable to new roles or different sites.
If you can’t reach an agreement with the employee, then you will need to consider dismissing her on capability grounds.
Laura Kearsley, associate, Weightmans
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You can also find information on dealing with situations like this in XpertHR’s ‘how to’ guide on supporting an employee who becomes disabled. |
