Organisations need to be flexible and reactive when dealing with MS

Employers often find the disability discrimination rules difficult to navigate, particularly when dealing with employees that have progressive illnesses with changeable and recurring symptoms, such as multiple sclerosis (MS).

The Equality Act 2010 makes discrimination against disabled employees unlawful, and someone diagnosed with MS is automatically considered to have a disability and have the full protection of the Act. This means the employee does not need to satisfy the legal test of having a “physical or mental impairment, which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities”.

The law protects employees from less favourable treatment by their employer because they have a disability or because of something arising as a result of that disability (for example, being treated less favourably because of disability-related sick leave or time off to attend medical appointments). Organisations are also under a duty to make reasonable adjustments to policies and practices, as well as physical adjustments, in order to level the playing field between disabled employees and their non-disabled colleagues, and this duty can be onerous.

The rights and protections given to employees with disabilities apply irrespective of the size or nature of the employer’s business, and considerable time and resources are often needed to comply with the duty to make reasonable adjustments. But the consequences of failing to do this can be costly if a claim results, particularly for smaller employers, and compensation for successful discrimination claims is uncapped.

Many MS symptoms, such as fatigue, are hidden and it can be particularly difficult for organisations to understand employees’ needs and what they can do to support them at work. It is important to obtain medical and occupational health advice on how the condition affects employees’ ability to perform their role, in order to see what can be done to help overcome any disadvantage/obstacle they face in carrying out their work, including what support mechanisms to put in place. Organisations need to bear in mind that MS symptoms fluctuate and what’s required one week may not be needed the next. Companies need to be flexible and reactive.

Organisations will be in a better position to deal with an employee with a progressive condition such as MS, if they:

• Try to foster a working environment where employees feel comfortable to disclose any health conditions they have and the effects on their work confidentially.
• Avoid making assumptions about the employee or his or her medical condition. 
• Explore with occupational health and the employee what adjustments could be made to alleviate any disadvantage in the workplace (these could include flexible working, part-time working, working from home, or physical adjustments to workstations).
• Consider more creative solutions where adjustments are needed, such as swapping roles with other employees and removing certain duties.
• Suggest a trial period to determine the viability of a potential adjustment, if the employer is not convinced it will work. 
• Be sensitive to any changes in the employee’s behaviour that may indicate his or her condition has worsened.
• Communicate regularly with the employee regarding his or her condition and any changes to it, and obtain updated medical advice when appropriate. 

Maintaining good, open channels of communication can also reduce the risk of the employee becoming disgruntled and, in turn, the risk of a claim. Organisations should not disregard adjustments simply because of cost or effort, before they have considered carefully the reasonableness of the decision.

What is considered ‘reasonable’ is ultimately for a tribunal to decide in the event of a claim. An adjustment should not put a disproportionate burden on the employer but it would not be reasonable to pass on the costs of complying with the duty to make reasonable adjustments to the employee. Factors a tribunal would consider would include how practicable the adjustment is, the extent to which it would ameliorate the employee’s disadvantage, and the financial and other resources available to the organisation in question.

Organisations should make sure they document meetings with the employee and follow up with emails to record agreed action plans, so there is less room for disagreement and both employee and employer know what is expected of them. But companies should also be flexible and appreciate that the duty to make adjustments may arise in respect of one-off decisions and in relation to how policies are applied – for example, acceptable levels of sick leave and rolling over holiday if the employee has not been able to take it due to his or her medical condition.

Eleanor Gilbert is a senior associate Winckworth Sherwood LLP

Shared from People Management