The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to premises or working practices where a disabled job applicant or employee is placed at a substantial disadvantage due to their disability. In this context, a disability is defined as any long-term physical or mental impairment which has a substantial negative effect on a person’s ability to carry out everyday activities.
This blog does not intend to focus on an employer’s obligation to make reasonable adjustments for physical disabilities, for which the solution is often more apparent (for example, through the provision of specialised equipment or an accessible car parking space). Rather, this blog intends to serve as a warning for employers who fail to recognise the extent of their duty to make reasonable adjustments for mental health conditions such as stress, anxiety and depression, during a growing mental health crisis in the UK.
It is widely reported that the coronavirus pandemic and resulting economic recession have negatively affected people’s mental health and created new barriers for people already suffering from mental illness. As such, it is now more important than ever for employers and employees to know that stress, anxiety and other related mental health conditions can amount to a disability under the Equality Act and the duty to make reasonable adjustment therefore applies.
For an employer, failure to obtain legal advice on their duty to make reasonable adjustments could lead to a large and costly adverse award in the Employment Tribunal, as was seen earlier this year in the case of D’Silva v Croydon Health Services NHS Trust where, Ms D’Silva, an employee of CHS, was awarded £56,684 in compensation for unfair dismissal and failure to make reasonable adjustments.
D’Silva v Croydon Health Services NHS Trust
Ms D’Silva worked as a receptionist for Croydon Health Services NHS Trust for a period of 15 years before her dismissal in 2018. Ms D’Silva suffered from stress and anxiety, and had to take a long period of sick leave in 2016-2017.
Ms D’Silva’s occupational health report commented that she had a “public phobia” and so was unfit for public-facing work. Her employers accordingly sought to make reasonable adjustments by offering her a role in the back office as part of a phased return. Later, at a review meeting, Ms D’Silva claimed that the back office role was a junior role, below her capabilities and “stressing her out”.
A further occupational health assessment concluded that Ms D’Silva was fit to work but not at the front desk. Ms D’Silva was then absent with sciatica and again referred to occupational health. The assessment noted that if she could not work in the back office her “only other option” would be redeployment to a non-patient facing role. She started receiving bulletins for redeployment roles, however a suitable role was not found and she was signed off with long-term sick from June – August 2018.
On her return to work in September, several meetings were held to discuss redeployment but a role was not found. Ms D’Silva was then asked to attend a long-term absence review meeting where she was told there was “no evidence” she had applied for any jobs.
At the review meeting it was concluded that there was no way for Ms D’Silva to return to work and that she had “unreasonably high” levels of sickness absence. She was dismissed on grounds of capability due to ill-health.
Ms D’Silva brought claims in the Employment Tribunal for failure to make reasonable adjustments, unfair dismissal, disability-related harassment and victimisation.
The Employment Tribunal dismissed the claims for disability-related harassment and victimisation but found that Ms D’Silva had been unfairly dismissed and there had been a failure to make reasonable adjustments. CHS was ordered to pay Ms D’Silva £56,684 in compensation.
This case highlights two important issues for employers:
1. An employer must take a proactive role in identifying reasonable adjustments which would avoid placing a disabled employee at a disadvantage. The tribunal found that it was not up to Ms D’Silva to find a new position by way of the vacancy bulletins; it was CHS’ duty to make reasonable adjustments or, in unfair dismissal terms, to take reasonable steps to investigate alternative work and consider redeployment.
2. The longer an employee is in a phased temporary role, the harder it will be for employers to require employees to return to their full-time role and/or hours.
In some cases, the duty to make reasonable adjustments could include creating a role for an employee which makes use of their skills to avoid their dismissal, providing it is a valid role within the organisation. In this context, the Tribunal has made it entirely clear just how far reaching their interpretation of “reasonable” can extend.
If you are an employer or employee and you require advice and/or assistance about reasonable adjustments for mental health conditions, please contact us on 0845 287 0939 or send your enquiry by email.