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Returning to the office – Exercising caution when dealing with vulnerable and disabled staff

On 19 July the government relaxed its working from home advice, following which a significant number of employers insisted that staff begin returning to the office. For some, this meant on a permanent basis.

The end to home working has resulted in uncertainty for many. Employees are left feeling that having successfully demonstrated their ability to work effectively from home, they should now be allowed a degree of flexibility about where they work.

Inflexibility on the part of employers is also causing disgruntled employees to jump ship and move to organisations who have embraced flexible working.

Employers who adopt flexible working find that it leads to increased productivity, better staff morale, reduced sickness absence and better staff retention. As such, there are very good commercial reasons for organisations to adopt flexible working as the norm.

When determining what approach to take to flexible working, employers need to be particularly careful in relation to staff who may be considered disabled under the Equality Act – such individuals many have additional legal rights, which they are now more confident about enforcing.

In this article we have addressed some of the questions frequently asked by employers in this regard.

We expect all our staff to return to the office, do we have to make exceptions for staff on grounds of ill-health?

As a starting point, it’s worth remembering that under the Health and Safety at Work Act 1974 employers have a duty to safeguard the health and safety of all staff. For more information on this please read our previous article.

If the employee’s ill-health amounts to a disability under the Equality Act, you have a legal obligation to make reasonable adjustments to remove any disadvantage resulting from the disability. This may mean that you are required to agree to flexible working.

If the request is made on grounds of ill-health, even if the employee is not disabled, the business should give careful consideration to the request.

One size does not fit all, so try to understand as much as you can about the employee’s health, the particular challenges faced by them and how flexible working will assist them, then decide if the request can be accommodated.
Having an open dialogue with your employees will also help you identify any risk factors and put measures in place to address them.

If you believe the request cannot be accommodated, it is still worth trialling to see if it is possible, whether in whole or in part.

If the employee was working flexibly before the restrictions were lifted, it might be very difficult for you to refuse their flexible working request. Be sure you can justify your reasons for refusing a flexible working request.

How should we respond to a request from an employee to work from home full-time, on the grounds that it is a ‘reasonable adjustment?’

As mentioned above, if the employee is disabled, as defined under the Equality Act 2010, you will have a legal obligation to make reasonable adjustments. This might require you to allow the employee to work from home, even if others are not permitted to do so.

The first step is to understand if the employee is disabled and then to consider if working from home amounts to a ‘reasonable adjustment’ – this will depend on the facts.

You should instruct occupational health, and when doing so ask questions that will enable you to better understand the difficulties faced by your employee and the steps you can take to help them. These can include asking: is the employee likely to be considered disabled under the Equality Act; does working from or travelling to the office present any challenges/dangers to the employee; if so, what are these and what steps can be taken to ameliorate the difficulties faced by the employee; in light of the employee’s health condition, would the expert recommend any other adjustments.

Before instructing occupational health, you should ensure you have a good understanding of what the employee’s needs are, what adjustments they are requesting and how they feel the adjustments will assist them. This will help ensure that you ask occupational heath the right questions, ones that take into account the needs of your employee as well as your business.

If the employee is disabled, and the occupation health expert recommends some degree of home working, it would be very risky for you to oppose this recommendation. As doing so would leave you exposed to a disability discrimination claim.

Our employee is disabled, we have agreed he can work from home on a permanent basis, can we reduce his salary?

Any proposed pay cut is likely to be very unpopular and contested by the employee. However, many employers have considered reducing salaries on the basis that employees working from home are saving money because they are not having to commute. This ignores the increased outgoings they are incurring as a result of working from home, such as increased electricity costs.

Pay is a fundamental term of an employment contract, even if the contract itself contains a variation clause, one that allows the employer to vary the employee’s salary, you should proceed with caution when seeking to exercise such a clause.

It’s advisable that you consult with the employee before any decision is made and seek the employee’s consent to vary his contract. Failure to do so could give rise to a constructive dismissal claim. Also, in circumstances where the employee is disabled, there is a real risk that a reduction in salary may also amount to unlawful discrimination.

Our employee has a health condition, this puts him at higher risk if he contracts Covid. He is refusing to use public transport and has requested that we pay for a taxi to take him to and from work. Are we required to do this?

Unless the transport is provided by the employer, there is no legal obligation to safeguard the employee whilst they are travelling to and from work. The legal duty to protect the employee’s health and safety at work applies whilst they are at work.

However, given the known public health risks associated with using public transport a duty of care might be implied in the circumstances. It is arguable that the employer should take into account the risks associated with an employee’s commute.

It’s unlikely that you are required to pay for a taxi but this depend on the facts and will come down to a question of reasonableness. This means considering the following: what is the risk to him; how real is it; are there alternative ways to mitigate the risk, such as staggering arrival and departure times, facilitating cycling to work.

Employees have a statutory right not to attend a workplace if they have a reasonable belief that they are in serious and imminent danger. If the employee is able to demonstrate that there is a serious and imminent danger to him in using public transport, and that it was not possible to use an alternative method of transport, this would strengthen his arguments it is reasonable for his employer to pay for a taxi.

Our employment law experts have years of experience advising businesses on employment contracts and policies. To speak to one of our lawyers please call 0808 252 5231 or request a call back online.