This article looks at the law regarding employees returning to work after an extended period of illness related absence and the steps that employers may have to take to facilitate their return to the workplace. Recent cases illustrate the difficulties that employers may face when trying to balance the needs of such employees against established working arrangements.
Prior to returning to work an employee may request that special arrangements are put in place to facilitate their return, such as a phased return to full time duties, a reduction in the physical demands of the role, or an adjustment in their working patterns, for example a move from night shifts to days shifts. Employers are sometimes reluctant to accommodate these requests because they are concerned that if they make alterations to working arrangements for one employee then they will they will have to provide similar arrangements to their other employees.
However, medical conditions may be considered a “disability” within the meaning of the Equality Acts and consequently employers have an obligation to make reasonable adjustments to working arrangements to facilitate the employees return to the workplace.
An employee with a disability is considered to be fully capable of doing their job if they could do so with reasonable accommodation. Reasonable accommodation means adopting appropriate measures which would enable the employee to access to the workplace, once those measures do not impose a disproportionate burden on the employer.
The Labour Court set out the steps that an employer must take in the case of A Health and Fitness Club v. A Worker (EED037) in which they laid down the following two stage process:
1. Reviewing the medical evidence from the employee’s doctors or an independent expert to establish the employee’s capability, including the degree of impairment arising from the disability and its likely duration.
2. If it is apparent that the employee is not fully capable of performing their job then the employer needs to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable.
If there are measures which would facilitate the employee’s return to work then the employer has an obligation to put these in place unless the measures would place a disproportionate burden on the company. Employers will rightly want to know what constitutes a disproportionate burden in providing reasonable accommodation in such cases. This must be assessed on a case by case basis but there is general guidance from recent case law.
For instance the case of A Worker vs An Employee (ADJ-00000557) highlighted that even large multi-national employers struggle with the concept of providing reasonable accommodation for employees. In that case an employee returned to worked after a long depressive illness. She had been employed on a shift cycle which required her to work a combination of day and night shifts over a three week cycle. However she informed her employer that working night shifts in this manner aggravated her depression and advised them that her GP recommended that she should be accommodated with day shift work. She applied for a move to day shifts but this request was refused.
The employee claimed that she had been discriminated against on disability grounds. In his oral evidence, the employer’s HR manager stated that there was great competition for the day shifts and so a transfer system from the shift cycle to day shifts had been agreed with the union to ensure fairness in access to those jobs.
The HR manager also stated that transferring the employee to a day-only shift would have necessitated hiring a replacement for her, and that she would have needed additional training to meet the requirements of the position. He stated that “disability would not put you on top of the list automatically” and that instead, the skill-set, training and motivation of applicants would be examined.
In deciding in favour of the employee, the adjudication officer acknowledged that the employer had satisfied the first step in the process by obtaining an independent medical assessment, but once they received that advice they treated the matter as a normal transfer request in line with its union agreement rather than as an obligation under the Equality Acts. He held that the employer was incorrect in treating the medically identified need of the employee to be accommodated with daytime work as being on par with the company’s normal transfer policy and that in doing so the employer had failed to provide the employee with reasonable accommodation.
The adjudication officer confirmed that the union agreement did not take precedence over the employer’s statutory obligations towards the complainant and that the statutory right of a disabled worker to reasonable accommodation is not a matter of “grace-and-favour”. He said,
“The right to reasonable accommodation is … limited only by the financial resources of an employer and whether the measures identified as necessary place a disproportionate financial burden on a respondent employer.”
In this case the employer did not produce any evidence to suggest that accommodating the employee as suggested would impose a disproportionate burden on the employer.
The case illustrates that employers can find it difficult to accommodate the needs of an employee with a disability in the workplace, particularly where those changes challenge established working arrangements.
There is no doubt that it can be difficult for employers to realise that they have to adapt their working practices and re allocate responsibilities to facilitate employees with disability.
For further information on this or any other employment matter, please contact Paul Gough, Senior Associate Solicitor.