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The legal definition of “disability” can be found in the Equality Act 2010 and is essentially “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ adverse effect on [a person’s] ability to carry out normal day-to-day activities.”
Any employee who suffers from a disability, which may include anxiety or depression, has the right to request reasonable adjustments to their working conditions and patterns to enable them to continue to do their work. This might include taking regular breaks, reducing their hours or working more flexibly.
The employer will need to work closely with the employee and a medical professional to understand their specific needs and to work out how best to accommodate them in line with the business needs. An employer is only obliged to make “reasonable” adjustments so it’s possible to refuse to make adjustments if there’s clear justification for the refusal.
Many employers have been able to accommodate much more flexibility in their work arrangements over the last 18 months. It’s worth being mindful that an adjustment which an employer may not have been able to accommodate before the pandemic may very well be “reasonable” now.
Originally flexible working was introduced as a concept whereby employees who had caring responsibilities or children could make a request to work more flexibly to help them provide care.
This right was subsequently extended to all employees and the only requirement now is that the employee must have been working for the organisation for at least 26 weeks.
When an employee makes a request to change their working pattern and/or hours of work, the employer will need to consider whether they can agree. If the employer agrees, the changes become permanent, if not the employee continues to work under their original terms and conditions.
There are set grounds on which an employer can refuse a request:
Planned structural changes
While the grounds for refusal are generally very wide, it is important for employers to follow the correct procedures, when refusing or allowing request.
I would anticipate that as employers require more staff to return to the office, there will be an increase in the number of flexible working requests. It may be a good opportunity for HR teams to ensure their procedures are up to date to deal with these appropriately.
A safe environment
An employee could legitimately refuse to return to work if they feel that by doing so their health is at risk, and they’re able to point to the specific business failings leading to this fear. Employers must do everything possible to make their business premises safe by following Government guidance, undertaking risk assessments, and implementing any recommendations.
Another tricky area is the Covid-19 vaccination, still a thorny subject in some areas of the country. The Government roll-out of vaccinations has been incredibly successful but there are people who are either unable to be vaccinated, or refuse.
There is no specific law that prevents employers making vaccination a mandatory requirement to undertake a role. However, depending on the reason for the employee’s refusal, making it a requirement could give rise to various claims; it would be important for employers to seek legal advice before making vaccinations mandatory or before taking action against an employee who refuses to be vaccinated.
In the great return to the office, the mental and physical health of employees must be a high priority for employers. Again, communication and open conversations about the challenges facing teams must be encouraged in a supportive environment, with the employer doing as much as they can to reasonably accommodate the needs of their employees.
Michael Jenkins, Head of Legal Advice, Arc Legal
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