Accessibility in the workplace

Rebecca Berry at Stevens & Bolton LLP asks whether the workplace of the near future risks leaving disabled workers behind

 

It is certainly not a dull time to be working in employment law. HR professionals find themselves needing to get to grips with the proposals of the Employment Rights Bill, and more and more businesses are reassessing working practices to ensure that they fit in the modern workplace.

 

Given the proposed changes to certain benefits affecting those who are disabled or unwell, it’s likely an increasing number of people currently off work will seek to return to the workplace over the next few years; employers will need to consider how best to support them.    

 

Could new developments and working practices have unforeseen consequences, and do they risk leaving some areas of the workforce behind?  

 

The return to office working 

In the five years since the working-from-home mandates of the pandemic, staff have grown accustomed to remote working or hybrid working for all or part of the week. A growing number of junior employees have not known anything else.

 

The ability to work from home, with added benefits such as avoiding a commute to work, or to work in the employee’s home, perhaps with specialist auxiliary supports, has proven a significant benefit to disabled employees. Indeed, some disabled employees have been able to access opportunities that would otherwise not have been open to them, had they been required to work full time in an office environment.

 

This poses challenges as more employers are asking their employees to increase the amount of office attendance and some employers, like Amazon, are requiring full time office working.

 

Whilst employers herald the benefits of office working, citing factors such as better collaboration and enabling colleagues to learn from each other more readily, disabled employees who have previously relied on their ability to mitigate the impact of their condition by working from home could find themselves significantly impacted. 

 

Employers have a duty to make reasonable adjustments in respect of disabled employees to remove or reduce the disadvantage they suffer at work because of their disability. It may be difficult for an employer to argue that it would not be a reasonable adjustment to enable a disabled employee to continue to work from home if the employee is able to demonstrate that they can still successfully fulfil their role.

 

That said, each case will turn on its own facts, and in some cases, employers may be able to demonstrate well-founded reasons why a certain level of office work is required. 

 

Supporting disabled employees

Employers should engage the support of an occupational health specialist when considering whether there are any reasonable adjustments that could be made to support a disabled employee. They can provide advice on the impact of the employee’s specific condition and recommend changes or adjustments that could be made to the employee’s specific working arrangements to support the employee.

 

Whilst specialists might make any number of recommendations of possible adjustments, the employer will need to consider whether they are reasonable. This will involve an assessment bearing in mind a range of factors, including the size and resources of that particular business and the impact of the adjustments on other employees. 

 

The adjustments themselves could involve making adaptations to the office environment to increase accessibility to disabled employees, rather than focussing on remote working as an alternative. It can therefore be used as a tool to facilitate a return to  working in the office or returning to the office for a greater number of days each week.

 

 Employees who are asked to attend the office more regularly may also submit a flexible working request, and an increasing number of disabled employees are submitting such requests – especially as this is a now a day-one right. Whilst an employer can refuse these requests relatively easily by relying on one or more of the eight statutory reasons for refusal, the refusal could be indirectly discriminatory unless an employer can demonstrate that the refusal was justified (i.e. that it was a proportionate means of achieving a legitimate aim).

 

For disabled employees, this means that submitting a flexible working request is a valuable tool to try to get their employer to agree to working practices which reduce the impact of their condition. 

 

The Employment Rights Bill and diversity

Is the Employment Rights Bill bad news for a diverse workforce? One of the key anticipated changes brought by the Employment Rights Bill is the right not to be unfairly dismissed from day one of employment, which is expected to become law in the latter part of 2026. Whilst the Bill includes a yet-to-be-clarified ability for employers to adopt a “light touch” dismissal procedure for poor performance during an initial period of employment (currently thought to be nine months), it is still not clear what “light touch” may mean.  

 

This is, understandably, making employers uneasy. Whereas previously, employers may have taken advantage of the fact that there would be a relatively low risk to dismiss an employee during a probationary period or otherwise during the first two years of employment to take a chance on an employee who they were not entirely sure of, the ability to claim unfair dismissal from day one of employment may mean that employers are more reluctant to take that risk. 

 

This could have a particular impact on employment prospects for individuals where employers have question marks arising from their CV, including those returning from a career break or the rehabilitation of offenders or who have had periods of not working due to an illness or condition.

 

In our discussions with employers about the forthcoming changes, many have indicated that they will undertake much more stringent recruitment practices, including psychometric testing and multiple rounds of interviews, to try to reduce the risks associated with recruiting someone who then turns out not to be suitable for the role. . 

 

The future of the workplace

One of the unintended side effects of this could well be a less diverse workforce – employers may be more likely to recruit from a familiar pool of candidates where there is greater certainty the employee will be successful in their role, which may have a detrimental impact on social mobility and diversity more generally.  This may well also impact those with certain health conditions, including those who are neurodiverse.   

 

It is already the case that a disabled person would be able to bring a claim of discrimination if they were passed over for an opportunity because of their disability. At present they would have to show that they are disabled and that the reason for the treatment is their disability or a reason related to their disability. The new day one unfair dismissal rights will therefore be a useful additional right for all employees, including disabled employees. However, employers’ increased caution around recruitment decisions could negatively impact those with a disability or health condition. 

 

With an increased risk attached to poor recruitment decisions, measures to improve the retention of skilled employees, including those with a disability, will become even more crucial.

 

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Rebecca Berry is Managing Associate at Stevens & Bolton LLP

 

Main image courtesy of iStockPhoto.com and shironosov