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WorkWell

The Government has long stipulated that work and health are closely linked; employment improves living standards and well-being, while prolonged absence from work can harm health due to financial strain, lack of support and social isolation. Good work benefits families and communities by increasing productivity and promoting societal advancement.

The Government’s stated aim is to create a healthier, more productive nation by helping individuals with disabilities or health issues remain in the workforce, recognising that long-term sickness is the most common reason for economic inactivity in the UK.

The Government therefore announced its WorkWell initiative in the Spring Budget. This aims to assist around 60,000 long-term sick or disabled individuals to find and maintain employment through integrated work and health support. The Government states that: A joined-up approach to work and health services is required to systematically improve access to the kind of support we know helps people to start, stay and succeed in work.

WorkWell, launching in October 2024, offers early intervention and holistic support to overcome health-related work barriers. It serves as a single gateway to various support services, tailored to local needs and involving collaboration between health services, local organisations, and job centers. Employers will receive guidance, and participants will access expert assessments of their health-related barriers to work and personalised plans, along with referrals to additional services like debt advice.

Recognising the need for a coordinated approach, WorkWell integrates local work and health services, led by Integrated Care Systems and local authorities, with referrals possible through employers, local services, primary care providers, and self-referral. It targets both employed individuals struggling with health conditions and recently unemployed individuals hindered by health issues.

For example, a GP could refer a patient with a bad back to WorkWell, where an adviser may contact their workplace to make adjustments to facilitate their return to work which could include for example, flexible working, relocating their office to the ground floor and/or help to access physiotherapy. This is in the hope that with the right workplace adjustments and help, more people will be able to stay in work.

Reasonable adjustments

This initiative fits squarely within the existing obligation for employer to make ‘reasonable adjustments’ within the workplace for disabled workers under the Equality Act 2010 (the “Act”). Disability is one of nine “protected characteristics” covered by the Act and the duty to make reasonable adjustments is unique to disability. Section 20 of the Act imposes a duty on employers to make reasonable adjustments where a disabled job applicant, employee, worker and/or former employee or worker (in certain circumstances) is placed at a substantial disadvantage by an employer’s operation or imposition of a provision, criterion or practice (“PCP”). Similar obligations arise in relation to physical features of a property or an employer’s failure to provide an auxiliary aid which may also be engaged when dealing with disabilities within the work environment.

The Employment Appeal Tribunal (EAT) has emphasised that the duty to make reasonable adjustments primarily aims to facilitate disabled individuals in staying employed or returning to work, ensuring their full participation in the workforce. The focus is on granting access to employment, training, and eliminating barriers to enable disabled persons to participate equally in the workforce. The duty under the Act applies when addressing the needs of a disabled employee, defined as having a physical or mental impairment significantly impacting daily activities for an extended period. Employers must treat disabled individuals more favourably to mitigate or eliminate their disadvantages when this duty arises.

The sorts of reasonable adjustments that employers can make are illustrated by the following case examples:

Place of work

In Garrett v Lidl Ltd UKEAT/0541/09, the EAT confirmed that an employer is entitled to move a disabled employee to a different location (assuming this is permitted by a contractual mobility clause) to facilitate the making of reasonable adjustments.

Homeworking

In Secretary of State for Work and Pensions (Job Centre Plus) and others v Wilson UKEAT/0289/09, the employer rejected an agoraphobic employee’s request to work from home. A tribunal held that this amounted to a failure to make reasonable adjustments but the EAT overturned that decision. The evidence showed that the work, which involved face-to-face interviews with the public and handling confidential files that others in the office needed to access, could not be done effectively from home and as such, although it might have been an adjustment that could have helped the employee, it was not a ‘reasonable’ adjustment.

Working hours

In Walsh v London Borough of Islington ET2204074/2020, Mr Walsh, who suffered from Crohn’s disease, requested a reduction in his working hours from full-time to part-time. Specifically mentioning his disability, he proposed working 2.5 or 3 days a week with adjusted hours. Despite his role as a Clerk, his request was denied. Furthermore, even though Occupational Health had recommended a part-time arrangement, his suggestion of a job share was deemed impractical, and the refusal was upheld in an internal appeal.

An employment tribunal ruled that offering Mr Walsh a three-day working week would have constituted a reasonable adjustment given the circumstances. If consecutive days were challenging, his employer could have explored alternative configurations. Despite no evidence of his employer ever offering a three-day working week, they should have considered Mr Walsh’s reasonable suggestions, even if implementation incurred some costs.

In Hargreaves v Department for Work and Pensions ET1807192/2017, Mr Hargreaves, who suffered from depression, had previously experienced difficulties with flexible working which had resulted in lateness and inaccuracies in logging hours. However, he made a further flexible working request and that was denied given the previous experience of his ability to manage a flexible working pattern and that refusal ultimately led to his dismissal. When the matter came to be considered by the Tribunal, it was determined that the Department for Work and Pensions (DWP) had failed to fulfil its duty to make reasonable adjustments by not considering Mr Hargreaves’s evolving circumstances when assessing his latest request for flexible working.

The tribunal concluded that the DWP should have granted the flexible working request, at least as a trial. Despite the failure of the previous attempt at flexible working, it was significant that Mr Hargreaves had since changed his medication and commenced cognitive behavioural therapy.

In Matthews v Razors Edge Group Ltd ET/ 2409756/2020, Mrs Matthews, a hair stylist, suffered from long COVID, although it was recognised that the understanding of that condition was limited at the time of her resignation. Despite experiencing ongoing symptoms such as chest pains, shortness of breath, and tingling, impacting her ability to stand for long periods and carry heavy items, her employer did not accommodate her GP’s recommendation of a two-day return to work initially. Instead, they proposed a phased return over four weeks or a one-day return with no fixed time limit. Mrs Matthews resigned after reminding her employer of the GP’s recommendation and the impracticality of the proposed alternatives.

An employment tribunal ruled that the employer’s failure to discuss the reduced hours as advised by the GP constituted a failure to make reasonable adjustments.

Altering duties

In McGuinness v Mersey Care NHS Foundation Trust ET/2409186/2021, Mr McGuinness, a senior nurse practitioner, was disabled by reason of his impaired cognitive ability, caused by a brain haemorrhage. There were certain management requirements known as “caseload holder tasks”, which his employer applied to him in his role and accepted put him at a disadvantage because of his cognitive impairment. An employment tribunal held that, on Mr McGuinness’ return to work, his employer had failed to take reasonable steps to avoid that disadvantage by failing to provide him with the auxiliary aids recommended by Access to Work and failing to provide him with training to help him work towards carrying out the caseload holder functions. The tribunal concluded that the adjustment required was to ensure he did not perform those duties until he had received the necessary equipment and training.

However, employers should be wary of making adjustments to an employee’s role without consultation and agreement with them. An employment tribunal could find that unilaterally changing an employee’s role to be unfavourable treatment. The changes may limit the employee’s opportunities or lead the employee to feel as though they had been demoted.

In addition, in G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15 the EAT upheld a tribunal’s decision that an employer was required, as a reasonable adjustment, to protect the pay of a disabled employee who was assigned to a less skilled role following a period of sickness absence. The EAT noted that while it will not be an everyday event for an employer to provide long-term pay protection, cases can be envisaged where this may be a reasonable adjustment as part of a package to get an employee back to work or to keep them in work.

Conclusion

With the implementation of the WorkWell initiative, it is anticipated that there will be far more proactive intervention with employers by the employee and third party agencies to support their employees to remain in or re-enter the workforce.

The WorkWell service aims to offer a unified assessment and access point for both employment assistance and local health services, aiding individuals in managing their conditions and identifying necessary workplace adaptations or support for continued employment or earlier return to work.

It is crucial therefore for employers to carefully consider the specific needs of their business and the adjustments being recommended for a disabled member of staff to assess the extent to which those adjustments would overcome the difficulties the individual is facing and whether it would be a reasonable adjustment in the context of the needs of the business. Employers frequently feel that if an adjustment is recommended by occupational health, a GP or another health care professional that they have to implement that adjustment, but the decision is a business decision, albeit in the context of the medical and occupational health advice.

Should you have any queries in relation to issues arising with the question of reasonable adjustments, or indeed any other employment law related query, please contact Linky Trott or any other member of our Employment Team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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