Disability Awareness Day – Employment Law Update

In recognition of Disability Awareness Day on 12th September, we thought it a pertinent time to shine a spotlight on the current disability-related employment law hot topics.

Talking point – long COVID

One of the most prominent discussions at the moment is whether or not long COVID should be recognised as a disability within the meaning of the Equality Act 2010 (the “Equality Act”). The Trades Union Congress is, for example, of the view that is should be.

Recognition would enable those people who are suffering from the effects of long COVID to benefit from the protections afforded by the Equality Act, including the right not to be directly or indirectly discriminated against. Employers would also be obliged to make reasonable adjustments to enable an employee suffering with the condition to carry out their duties, such as amending their working hours and, perhaps, allowing them to continue working at home.

We are still understanding long COVID’s full effects and the question around whether the condition amounts to a “disability” has not yet been considered by the Employment Tribunal; consequently, the debate is currently centred on the interpretation of the statutory definition of a disability, which is: a physical or mental impairment which has a 'substantial' and 'long-term' adverse effect on the ability to carry out normal day-to-day activities. With the key symptoms of long COVID having been described as a cough, breathlessness, fever, palpitations, fatigue, cognitive impairment and joint pain, some have commented that these symptoms, particularly cognitive impairment, breathlessness and fatigue, could inhibit an individual’s ability to carry out day to day activities.

On this basis and until a definitive answer is given, employers should act cautiously if an employee is thought to be suffering from long COVID. As ACAS has suggested in its guidance: “it’s a good idea for the employer to focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability”.

Government strategy – National Disability Strategy

Indicative of a continued intention to protect those who are classed, or who should be classed, as disabled under the Equality Act, the government published its National Disability Strategy in July 2021. This includes, amongst other points:

• The intention to introduce access to work passports which would document an individual’s specific needs within the workplace in relation to their disability.
• An employer and employee support hub in conjunction with ACAS, which would clearly set out the rights and obligations afforded to both individuals and organisations.
• The possibility of reporting obligations, akin to those of gender pay reporting, to document an employer’s actions as well as their shortcomings in relation to accommodating disability within their workforce.

Tribunal judgment – who should make the adjustments?

Finally, a recent interesting judgment given by the Employment Appeal Tribunal in the case of Mallon v AECOM Ltd (2021), has stated that employers cannot take for granted the fact that a third party should have, or is likely to have, made reasonable adjustments which would otherwise have been made by the employer under its duty to make reasonable adjustments.

Key facts in the case focused on the employer’s assumption that a job applicant’s family would support him when making a job application, so the employer did not need to adjust their application process to accommodate his disability (dyslexia). Whilst the judge did not say that employers can never rely on a third party making adjustments, the overall message is clear – an employer must consider all the circumstances giving rise to the need to make reasonable adjustments and should not step away from this duty lightly. This is a useful reminder to employers to always consider whether adjustments need to be made to their application processes.

For more information, please contact Joe Beeston (Counsel) or Nina Gilroy (Legal Executive) in our Corporate team.

Disclaimer

This note reflects our opinion and views as of 9 September 2021 and is a general summary of the legal position in England and Wales. It does not constitute legal advice.