Adapting work for workers with disabilities
How occupational laws help to guide employers through the process.
It is of ethical and legal importance that businesses are clued up on the relevant occupational laws. 
Krysalis Clinical Manager, Vicky Baylis
Do you employ or plan to hire workers with disabilities? Do you know what you need to do by law to accommodate them?
There are laws around workplaces and work practices regarding employing workers with disabilities.
Here's a walk-through of some of the key considerations in a Q&A with Krysalis's specialist neurological occupational therapist and Clinical Manager Vicky Baylis [1]
Q1: To what extent is an employer legally obliged to adapt the work environment and working practices to accommodate workers with a disability?
The Equality Act 2010 is one of the main pieces of legislation dealing with disability rights in employment in Britain.
The act makes it unlawful for employers to treat a person with a disability unfavourably and sets out the circumstances when this may occur.
Therefore, it is in every employer's interest to understand the definition of 'disability' in the eyes of the law.
While the legislation trumps all, previous case law assists us in understanding how judges decide whether someone is disabled.
For example, in the employment tribunal case of Hyland v Aspeident CIC in 2019 [2], employers, Aspeident, did not believe that employee Ms Hyland had a disability.
But the judge ruled that she had a disability – Asperger's, an autism spectrum condition classed as a mental disability that meets the criteria in Section 6 of the 2010 Equality Act.
Section 6 also provides questions that helped to guide the ruling, including:
- Does the impairment affect a person's typical day-to-day activities? (It was decided that Asperger's did affect Ms Hyland daily in many ways.)
- Were the effects of these difficulties substantial? (The judge in Ms Hyland's case found them to be so.)
- Was the impairment long-term? (Ms Hyland had been diagnosed with Asperger's as a child, and it is a lifelong condition.)
Ms Hyland went on to take Aspiedent to court in 2021 for failure to make reasonable adjustments, unfavourable treatment, and victimisation. The court again ruled in her favour.
The case illustrates that to be deemed to have a disability is not that straightforward. And the employee (or claimant) has a responsibility to prove it too.
Q2: What should reasonably be expected of an employer when someone is deemed to have a disability as set out in the 2010 Equality Act?
According to the act, employers must make reasonable adjustments to the physical work environment, provision, or practice for employees and job applicants with disabilities.
But it could be argued that a good employer will try to predict how they can make roles within their organisation accessible for people with disabilities.
That includes:
- The arrangement of their recruitment process
- How they adapt the roles and work environments in which their employees work
- Assessing whether adjustments put the individual with a disability or others more at risk
But what is considered 'reasonable'? Figuring out the following will help to answer that:
- How practical is the adjustment?
- How much will the adjustment cost?
- What are the financial circumstances of the employer?
As a neurological occupational therapist (neuro OT), I support adults with acquired brain injuries back to work.
The long-lasting symptoms of a brain injury can be hidden, and it can be challenging for employers to understand their employees' difficulties and the reasonable adjustments that could be made to support them.
In my experience, however, many 'reasonable' adjustments are not hugely costly. In some circumstances, making significant changes to premises may be more cost-effective than recruiting someone else.
'Reasonable' steps differ from case to case but refusing to make a reasonable adjustment is committing an act of unlawful discrimination.
Q3: Does this legal obligation apply when an employer alleges they were unaware of the disability?
If the employer can provide evidence that they were unaware of the disability, they can use this as a reason for not making reasonable adjustments.
This is known in a discrimination case as the 'lack of knowledge defence'.
Conversely, if an employee wishes to apply for reasonable adjustments, it is in their interests to provide enough information about their disability to assist their employers.
It is possible, however, for indirect discrimination to occur, as in the case of Bevan v Bridgend County Borough Council in 2014 [3].
In this case, the change of Bevan's role from being able to walk to work to have to drive for 10 minutes was ruled unjustified - even though the employer was unaware of Bevan's disability, which was a travel phobia.
Bevan won the case as it was considered indirect discrimination.
Therefore, there may be some cases where an employer can be taken to court for indirect discrimination, even if they had no knowledge of their employee's disability and could not reasonably have known.
Q4: If an employee claims to be disabled during a fitness-to-work referral to occupational health (OH), what information should be given to the employer to assist in managing the employee?
OH professionals have a legal and ethical duty to maintain an individual's confidentiality and gain consent to share personal information.
They must also fall in line with data processing guidelines, meaning information presented to the employer should be relevant and limited to what is necessary.
However, they may encourage the employee to share enough information for an employer to take necessary steps (reasonable adjustments) to continue carrying out their role.
I hope that as society progresses in equality and inclusivity, useful tools such as the Empowerment Passport [4] may become the norm.
Tools such as these help people with disabilities to convey what support they may need within work and express more freely and easily what their strengths and challenges are.
Q5: Should an OH report be shown to the employee before it is sent to the employer?
As described above, consent must always be obtained. It is recommended (but not a legal requirement) that consent be given in writing.
Assuming consent is given, the principle of 'no surprises' should be adopted, as advised by the General Medical Council in its 2019 guidance on confidentiality. [5]
This means that if a report is going to be shared with an employer, the employee is given the opportunity to read the report first, allowing them a reasonable amount of time to give or refuse consent.
I believe the OH professional should show the employee the report before they send it to their employer to allow for any changes.
As a neuro OT, to meet my profession's standards for practice, I would also ensure that the individual has the opportunity to give informed consent.
That means that all information relevant to the consent request has been given to them in a way that they understand.
Q6: What if the employee refuses to consent to the report?
The General Data Protection Regulation (GD{R) that came into force in the UK in 2018 is the most current legislation for managing and protecting people's personal data.
GDPR Articles 4 & 7 state, in short, that if a person clearly indicates that they are happy for their information to be shared then the personal data can be shared.
This does not have to be in writing. However, this legislation alone may not be a justifiable basis for processing a person's 'health' related information.
Other considerations should be given to the ethics of sharing information, especially when there is a power balance (as there is in the OH/employer versus employee roles).
If the employee refuses to consent, the OH professional must not divulge the information unless it is necessary to protect others.
To do so would be breaking confidentiality, according to common law.
However, it is good practice to try to understand why consent has been refused and take steps to figure out how informed consent can be obtained.
If, however, the employee continues to refuse consent, any disability discrimination case brought against the employer may be thrown out due to the lack of information needed to make reasonable adjustments.
Further guidance
Find more details on how disability is defined according to the 2010 Equality Act here: Disability: Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability (HTML) - GOV.UK (www.gov.uk)
More advice around people with disabilities in employment can be found at the Equality and Human Rights Commission here: Employment: Statutory Code of Practice (equalityhumanrights.com)
Further reading
Please find out how we are helping Community Interest Company, GAIN, to support the employment of a neurodiverse workforce within the insurance, investment, and related financial services sectors…
GAIN - Group for Autism, Insurance, Investment and Neurodiversity (krysalisconsultancy.co.uk)
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