What steps have you taken to ensure that your business is safe for employees to return?

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02 July, 2020

Abigail Lynch

Have you gone far enough in regards to your obligations under the Equality Act 2010?

There is no doubt that over the last quarter of the year you have lost sleep wondering if your business will survive the worldwide pandemic brought on by the spread of covid-19. The Government recently announced relaxation of the nationwide lockdown, partly to enable businesses to begin re-opening, in an attempt to save the UK's economy.

While the guidance still suggests that people should work from home where they can, many businesses will require employees to be physically present to undertake their roles or to facilitate a quicker financial recovery - for example, in the construction industry. With this comes the inevitable return of employees into the workplace, following approximately three months of relaxation (or some may say turmoil!) at home.

This article will focus specifically on what businesses need to consider in respect of disabled employees, or employees who may now be considered disabled for the purposes of the Equality Act 2010, who will be returning to work in the foreseeable future, if they haven't already.

First and foremost, you may be thinking what do you mean by "employees who may now be considered disabled" - under the Equality Act 2010? Well…the definition includes a requirement for a mental/physical impairment to be long-term, which means that it has lasted 12 months, is likely to last 12 months or is likely to be permanent. As such, those who may not have triggered this long-term requirement previously, may have done so in the three months they have been away from work.

Further to this, some employees may have in fact developed new conditions (particularly mental health related arising out of the pandemic or their individual circumstances) or indeed, contracted coronavirus and suffered from some longer-term effects/impact as a result. Devastatingly, there have been some reports of individuals with long-term damage to their lungs and breathing, which could amount to a disability.

While you should already have carried out risk assessments and adapted your working practices to implement social distancing and enhance hygiene measures in the workplace - you may still need to go a step further in line with your duty to make reasonable adjustments under s20 Equality Act 2010. We would still recommend obtaining an Occupational Health report where possible to understand what reasonable adjustments could be made, however, this may be difficult to arrange face to face at present. Nevertheless, there are some clear reasonable adjustments that should be considered.

The most obvious reasonable adjustment is to allow those employees who can work from home, to continue to do so until such time the Government changes the stance on this (which is possible at any minute of the day but most likely at 5pm on a Friday night!). If they must return physically to the workplace and it is likely that they will be in a less favorable position than their non-disabled colleagues, then perhaps you need to consider keeping them on furlough, agreeing unpaid leave, using holidays and/or revisiting the possibility of working from home. You should consider disabled employees, or potentially disabled employees when deciding who to bring back.

If they are happy and able to return to work in a physical role, you may need to consider enhanced measures to facilitate social distancing for these individuals i.e. can they have their own office, can they work in a separate room, do they need more PPE, can they work shorter hours or return on a phased basis?

It is clear that businesses have already suffered a significant financial impact and as a result, are having to make tough business decisions. As such, it not worth adding more fuel to the fire by falling foul of the Equality Act 2010 and giving rise to potential disability discrimination claims with uncapped damages, particularly where businesses are already considering mass redundancies giving rise to the risk of unfair dismissal claims!

For more information contact Abigail Lynch in our Construction & Infrastructure department via email or phone on 0330 207 4469. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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