Covid-19 and reasonable adjustments - guide for reps

What does the law say about reasonable adjustments?

Employers have a duty under the Equality Act 2010 to make reasonable adjustments for disabled people

The law says an employer only has to do what is reasonable. The questions the employer needs to ask themselves is whether:

• the way they do things
• any physical features of their workplace
• the absence of an auxiliary aid or service
• it puts your disabled member at a substantial disadvantage compared with a person who is not disabled.

The test of what is reasonable is an objective test it is, not just what your member may personally think is reasonable. An employer can consider:

• how effective the change will be in avoiding the disadvantage your member would otherwise experience
• its practicality
• the cost
• the organisation’s resources and size
• the availability of financial support

The overall aim should be, as far as possible, to remove, reduce or prevent any disadvantage faced by your disabled member.

Does an employer need to put in place a member’s reasonable adjustments when they are working from home?

Yes, the Equality Act 2010 is still the law; the Covid-19 pandemic has not changed that, although the context might impact in various ways on what is considered reasonable.

As outlined above, all employers have a legal duty under the Equality Act 2010 to make reasonable adjustments to remove any disadvantages that disabled workers face compared to non-disabled workers.

This includes when the worker is working from home.

Existing reasonable adjustments for home-based working, i.e. those which were in place before the current crisis, will still apply and should be retained.

New requirements for reasonable adjustments, i.e. those which may have arisen as a result of being required to work from home, or any other new working arrangement as a result of the crisis, should be addressed.

Reps should support their members so that their existing reasonable adjustments are kept in place and encourage them to ask for new reasonable adjustments they need and additions to existing adjustments.

What reasonable adjustments can a member expect to be put in place during this crisis?

For some requests, what is reasonable will be unaffected by considerations related to the pandemic. For example, the installation of software programmes on a worker’s computer or the delivery of specialist pre-assembled equipment like a work chair. There is existing case law which provides examples of such adjustments that have been considered reasonable in the past.

It is likely an employment tribunal would expect an employer to put in place those reasonable adjustments.

In other cases, while the law has stayed the same, the efforts an Employment Tribunal will consider sufficient to discharge an employer’s obligation under the law are unclear in some circumstances.

What is considered reasonable at the moment is more complex in particular when considering reasonable adjustment requests that require home installation of a product by another person. With the current government advice on social distancing, it seems less likely an employment tribunal would expect an employer to have specialist equipment professionally installed in a worker’s house. In this instance, the health and safety of the workers who would have to install the specialist equipment might outweigh the duty to put in place reasonable adjustments.

Where an employer is unable to put in place the reasonable adjustments a member needs, you could ask for them to be temporarily reassign or given other work duties they can do until the employer puts the member’s adjustments in place.

A rep who encounters these issues should seek advice from their head office on how to proceed. It is important that the member receives prompt legal advice to ensure compliance with the time limits for tribunal claims.

What are some of the working from home adjustments members could request?

A member can request;

• a change to the way the job is done, including when it is done
• that the employer provides extra aids or services to do the job

There is no one-size-fits-all reasonable adjustment as each member’s needs are specific, and we know that what will work for one member might not for another and so an individualised approach is needed.

That said there are some common adjustments we are being told have been helpful including;

• changing work hours
• ensuring the members specialist equipment is in place e.g. ergonomic/specialist chairs
• installing specialist software on home computers/laptops

We know that for many members working from home is a new experience. While others, who have worked from home might, not have done so for this length of time.

This might mean the adjustments they need are different from the ones they have had in place when they were working on site or in the office.

If a member is finding that their agreed adjustments are not working for them anymore, they should have a conversation with their manager about putting in place adjustments that will work.

We advise that, in advance of a conversation with their manager, they consider:

• the impact of the working conditions on them, given their personal circumstances
• the barriers that they have/are encountering
• what adjustments they think will make it easier for them to fully participate

You should let your member know they are entitled to have a rep at this meeting to support them. And, if they request it, you should provide that support.

It is also good practice to make a written record of the agreed adjustments. The TUC has produced a Disability Reasonable Adjustments Passport they could consider using for this purpose.

With increased use of video and phone conferencing during home working what reasonable adjustments could be put in place to support disabled member so to communicate with their colleagues?

There is no one size fits all reasonable adjustment as each member’s needs are specific. We know that what will work for one member might not for another and so an individualised approach is needed.

There are many impairments which could require adjustments to be made in order for disabled workers to participate equality.

Now that most communication is happening via video or phone conferencing members might need reasonable adjustments made to these methods of communication.

Remember it is possible for members who are deaf or have a hearing impairment to participate provided the employer puts in place the right support. That could be, for example, using a speech to text provider or providing specialist phone. It may also be possible for a BSL interpreter to join video conference meetings.

What should I do if an employer is refusing to put in place a member’s adjustments?

Your member should not be penalised while they are waiting for the reasonable adjustments they need to do their job to be put in place.

If the employer is unable to put in place the reasonable adjustments your member needs you could ask for your member to be temporarily reassign/given other work duties that they can do until the needed adjustments are put in place.

An employer who refuses to put in place a members reasonable adjustments, which in the current circumstances could reasonably be expected, could be taken to the Employment Tribunal on the grounds of disability discrimination.

It is important that the member receives prompt legal advice on potential claims and to ensure compliance with any relevant limitation periods. A rep who encounters these issues should seek advice from their head office on how to proceed.

The Employer has suggested they furlough a disabled member because they do not want to put in place the reasonable adjustments the member needs. Can they do that?

An employer, who furloughs a disabled member because they do not want to put in place their reasonable adjustments, which in the current circumstances could reasonably be expected to be put in place, could be taken to an employment tribunal on the grounds of disability discrimination.

The worker maybe able to claim unfavourable treatment because of disability.

For more on furloughing read this blog by Tim Sharp, Senior Policy Officer, RISE TUC.

Does my member have to pay for the reasonable adjustments they need at home?

No, the employer is responsible for paying for and putting in place the reasonable adjustments.

Many employers allow workers to buy supplies and to claim the cost back. It is worth checking if the adjustment, and its associated cost, fall under this policy.