Kirsty Graydon: Increased governmental scrutiny of workers’ health not a win-win situation

Kirsty Graydon is an Employment Law Associate with Clyde & Co
Kirsty Graydon is an Employment Law Associate with Clyde & Co
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Individuals can find themselves losing their jobs for a variety of reasons. One of the government’s resolutions is to tackle the situation where employment is lost due to ill-health, whether that is because of resignation or dismissal.

According to a recent House of Commons paper, 7.7 million people of working age (between 16 and 64) reported that they had a disability in April-June 2019, making up 19 per cent of the working age population. Of the 7.7 million, an estimated 4.1 million were in employment. This represents an increase of 246,000 compared to 2018. This, as well as longer life expectancy and the expectation that people are working longer have been perceived as the catalyst for the government’s focus.

Whilst an employee that is unable to perform their role due to their ill-health can ultimately be fairly dismissed on the grounds of capability, it is not a decision that can be quickly reached. A thorough and reasonable process must carefully precede it.

Provisions are already in place to protect disabled employees. Under the Equality Act 2010, a person 
qualifies as disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

As well as protecting disabled employees from being less favourably treated, the Act imposes an obligation on employers to make reasonable adjustments for disabled employees. These can range from dimming the office lighting to installing a multi-thousand pound access ramp. The only limitation on this obligation is what is considered to be reasonable. Where an employer has failed to make reasonable adjustments this will amount to disability discrimination, the compensation for which is uncapped in the Employment Tribunal.

Whilst significantly greater than the norm, the highest disability discrimination compensation awarded by the Employment Tribunal according to the most recent statistics was £416,015, with the average award for such claims being £28,371.

The government is proposing to extend the protection awarded to disabled employees to all employees with health conditions, whether or not they are considered disabled. The aim is to support employees not already covered by the existing legislation to remain in employment. The hope is that more employees will be encouraged to seek support from their employer.

In July 2019 the government launched a consultation paper titled “Health is everyone’s business” to gather responses to proposals designed to tackle the problem of ill-health related job loss. Potentially the most controversial of the proposals is the introduction of this right for employees to request workplace modifications from their employer. The right would entitle all employees with health conditions to the equivalent protection awarded to disabled employees under the Equality Act. For employers, it would increase the onerous obligations and financial burden that they already face.

Disability discrimination legislation is already an extremely complex area of law. A large number of Employment Tribunal claims stem from it and the number is on the rise. There was a 24.54 per cent rise in disability claims raised in the 2019 financial year compared to 2018. Employers frequently unwittingly find themselves in the hot seat despite making genuine best efforts to stumble through this minefield. These challenges will arise more frequently as the situations where the additional protections apply increase. Furthermore, the scope of “health conditions” could be very broad. Clear-cut definitions and guidance will be a fundamental requirement.

Employment is certainly not a stagnant area of the law. New 
case law constantly paves the way for developments in the law. 
Brexit might bring with it issues for migrant workers, growing awareness of diversity might give rise to the requirement for more consideration and changes and millennials might continue to curb historic working practices.

It remains to be seen whether this proposed intervention from the government will be well received in light of the many plates which employers already have to keep spinning. The consultation, which concluded on 7 October 2019, is likely to have evoked some strong feedback. Until the results are published, it is only the government’s business…

Kirsty Graydon is an Employment Law Associate with Clyde & Co