Adapting work for workers with disabilities
How occupational laws help to guide employers through the process of supporting employees.
It is of ethical and legal importance that businesses are clued up on the relevant occupational laws. 
Krysalis Neurological Occupational Therapist, Vicky Baylis
Access to good work is important.
And good work that is also accommodating is even more so.
It is vital that those who employ - or plan to hire - workers with disability, know the laws they should obey to accommodate their employees.
There are laws surrounding the workplace and its practices that affect employing workers with disability.
This means that all employers must make reasonable adjustments to ensure any disabled employee is not at a disadvantage compared to non-disabled individuals.
We walk through some of the key considerations of these laws in a Q&A with Krysalis Neurological Occupational Therapist, 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 an employer to treat a disabled individual unfavourably. Therefore, it is in an employer's interest to understand the law's definition of 'disability'.
Previous case laws assist us in understanding how judges decide whether someone has a disability.
An example is the employment tribunal case of Hyland v Aspeident CIC in 2019. [2]
The employers – Aspeident – did not believe that employee Ms Hyland had a disability. However, the judge ruled that Ms Hyland did have a disability that met the criteria of the law.
Section 6 of the 2010 Equality Act confirmed that autism spectrum disorder, which is more commonly known as ASD or autism, classed as a mental disability.
Section 6 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 ASD did affect Ms Hyland daily life 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?
Yes, Ms Hyland had been diagnosed with autism as a child, and it is a lifelong condition.
Ms Hyland went on to take Aspeident to court in 2021 for failure to make reasonable adjustments, unfavourable treatment, and victimisation.
The court again ruled in her favour.
This case illustrated that being deemed to have a disability is not a straightforward process. And the employee (or claimant) has a responsibility to prove it.
Q2: What should 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.
Beyond this, a considerate employer may also try to predict how they can make roles within their organisation more accessible.
This may include the arrangement of their recruitment process, how they adapt the roles and work environments, and assessing whether adjustments put the individual with a disability 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, I support adults with neurological conditions back to work with vocational rehabilitation.
The long-lasting symptoms of a neurological condition can be hidden, and it can be challenging for employers to understand their employees’ difficulties, and the reasonable adjustments needed to support them.
In my experience, many ‘reasonable’ adjustments are not hugely costly. In some circumstances, making significant changes to premises may be more cost effective than recruiting someone new.
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’.
If an employee wishes to apply for reasonable adjustments, it is in their interest to provide substantial information about their disability to assist their employer.
However, it is possible for indirect discrimination to occur.
The case of Bevan v Bridgend Count Borough Council in 2014 demonstrated this.
Bevan had a travel phobia, which classed as a disability, that the employer was unaware of. A change in Bevan’s role from being able to walk to work to having to drive for ten minutes was ruled unjustified.
Bevan won the case due to indirect discrimination.
Therefore, there may be some cases where an employer can be taken to court, even if they had no knowledge of their employee’s disability and could not 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 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 any information presented to the employer should be relevant and necessary.
However, occupational health may encourage an employee to share enough information for an employer to take necessary steps (reasonable adjustments) to continue their role.
I hope that as society progresses in equality and inclusivity, useful tools such as the Empowerment Passport [3] may become the norm.
Krysalis Neurological Occupational Therapist, Vicky Baylis
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 the consent is given, the principle of ‘no surprises’ should be adopted, as advised by the General Medical Council in its 2019 guidance on confidentiality. [4]
This means that before a report is shared with an employer, the employee is given the opportunity to read the report first.
This allows them a reasonable amount of time to give, or refuse, consent, and ensures all information relevant to the consent request is presented in an understandable way.
As an occupational therapist, to meet my profession’s standards of practice, I ensure that an individual has the opportunity to give informed consent, the same way an occupational health practitioner should.
Q6: What if the employee refuses to consent to the report?
The General Data Protection Regulation (GDPR) 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 and 7 state, in short, that a person’s personal data can only be shared if the person has clearly indicated their consent.
This does not have to be in writing, however the 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 v employee roles.
If the employee refuses to consent, the professional must not divulge the information unless it is necessary to protect others.
To do so would break confidentiality, according to common law.
It is good practice to understand why consent has been refused and take steps to understand how informed consent may be obtained.
If, however, the employee continues to refuse consent, the disability discrimination case brought against the employer may be thrown out due to 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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References
1. Vicky Baylis
2. Ms F Hyland v Aspiedent CIC: 1801330/2017 - GOV.UK
3. Empowerment Passport – Introducing your new friend for life!
4. About Confidentiality - ethical guidance - GMC (gmc-uk.org)