Tessa Robinson

With increasing numbers of employees now being asked to return to the workplace, a leading employment lawyer has warned employers to consider the impact on staff with disabilities, or risk falling foul of the Equality Act.  

Tessa Robinson, an Associate in Furley Page’s Employment Law team, said: “Now is a time of transition as employees return to the workplace either on a hybrid or full-time basis. Employers need to keep in mind the impact of this shift on any employees with disabilities. 

“The impact of the pandemic on a particular employee’s health may only come to light as they move away from homeworking, and it is important that employers are proactive in identifying and supporting staff throughout this process, to ensure they do not fall foul of the provisions of the Equality Act 2010. 

“As well as any pre-existing disabilities, employees may have developed a health condition during their time working from home, including physical conditions like long Covid, or mental health conditions including anxiety or depression. As always, managers need to be alert to any signs of mental or physical health conditions that may have a significant impact on the employee.” 

To be protected under the Equality Act 2010, the employee has to have a health condition which meets the statutory definition. This is a physical or mental health impairment which has a substantial, long-term, adverse impact on the employee’s ability to carry out normal, day-to-day activities.  

Tessa continued: “In addition to an employer’s responsibility for their employees’ health and safety while working, they also need to ensure that employees with disabilities are not discriminated against, either directly or indirectly. This includes making reasonable adjustments to the employee’s workplace or working arrangements in order to help accommodate their disability and enable them to work effectively.

“Employers also need to be mindful of long Covid, symptoms of which can include fatigue and ‘brain fog’ which could impact on an employee’s ability to perform at their usual level. If it is likely to have an impact on the employee for 12 months, long Covid could well be considered a disability under the Equality Act. Even if it is not a disability, employers may need to support staff with long Covid before moving to deal with sickness absence or reduced performance under the formal absence or capability procedures. 

“It is worth bearing in mind that long Covid is reported to affect women, people from ethnic minorities and older people more seriously. If the employee in question falls within one of these groups, it is important to seek legal advice as your treatment of them in relation to long Covid could be indirect discrimination.” 

For information and advice on how to manage employee’s health conditions, please contact Tessa Robinson, Associate in the employment team, on 01227 763939 or email tar@furleypage.co.uk 

By Ed

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