Supporting Disabled Employees with Hybrid Working

New guidance regarding supporting hybrid working arrangements for employees with disabilities has been published by the Equality and Human Rights Commission, as of the 5th of September 2024.

These new guidelines will help employers better understand their legal obligations when it comes to hybrid working, particularly those running small to medium sized businesses as recent employment tribunals have shown that there needs to be more clarity for employers. 

In the press release Baroness Kishwer Falkner, Chairwoman of the EHRC stated:

 “The duty to make reasonable adjustments needn’t be costly or difficult. Our guidance provides practical tips and advice produced with the assistance of industry bodies and experts so employers can ensure they are complying with equality law… These resources will help organisations to embrace the benefits that reasonable adjustments can bring in attracting, empowering and retaining top talent.”

EHRC has also specified that the guide should be used in addition to their guidance for employers on workplace adjustments and pre-employment health questions. 

For more guidance on making reasonable adjustments in the workplace, call the Croner HR experts on 0800 470 2830

What’s included in the new hybrid working guidance? 

The guidelines include practical tips and prompts surrounding both recruitment and employment, and although it is not an exhaustive list of issues you might need to discuss with an employee, they will help build the framework of process and correct procedure. 

What are hybrid working arrangements?

Hybrid working practices combine both in-person work and working remotely, typically split between home and an office setting but some hybrid systems incorporate locational working options as well. 

How does hybrid working benefit workers with disabilities? 

Hybrid working options when managed correctly can benefit workers with disabilities, allowing them to better manage their health and well-being, alongside giving them a comfortable work-life balance. 

The counter to this is that if hybrid working is not correctly implemented then employees could face difficulties such as isolation, a lack of inclusivity as well as lacking the right support and equipment for them to excel in their work. 

Reasonable adjustments in employment and the law

The Equality Act 2010 states that equality for those with disabilities in employment may require a change in the structure of employment, removing physical barriers or providing additional support.

Employers have a duty to make reasonable adjustments, this is sometimes referred to as workplace adjustments. Reasonable adjustments are designed to ensure that as far as is reasonable a disabled applicant or employee has the same access to everything that a non-disabled person has, when it comes to doing, keeping and getting a job.

This includes reducing, removing or preventing obstacles that a disabled applicant or worker faces. This duty applies in the following circumstances:

• In recruitment and all stages of employment from training to dismissal
• To all workplace arrangements, from in-person and including hybrid and remote positions. 

This duty extends to all disabled persons at the recruitment stage and in employment, including apprentices, contract workers and partners. 

What is defined as a disability? 

The definition of disability is stated as a physical or mental impairment or condition which has a substantial and long-term adverse effect on a person's ability to conduct daily activities. This includes day to day activities considered the norm, like being able to participate fully, effectively and equally in working life. 

When should employers make adjustments?

In the event that any of the following conditions put a disabled person at a disadvantage over those without a disability, you should consider. 

• The way you do things
• Any and all physical features of your workplace
• Absences of auxiliary aids and services

If considered more than a minor or trivial disadvantage to a person with a disability in comparison to a person without, then you must make reasonable adjustments.
What is considered reasonable adjustments, will differ from business to business.

Finding out about a disability

There are legal restrictions on when you can ask health and disability related questions, prior to offering a job to a candidate.

In the case of workers already in employment, adjustments must be made where you know or reasonably could be expected to know that the employee is disabled, and/or is likely to be at a substantial disadvantage. 

This includes doing everything reasonable in terms of finding out, however it does not include or mean asking intrusive questions or ones that violate the employee’s dignity. Privacy and confidentiality are of utmost importance as is what you ask and how you ask it.

What are the benefits of providing reasonable adjustments? 

There are several benefits including:

• Recruiting and retaining staff.
• Effective performance of your organisation.
• Developing positive relationships and increased productivity.
• Enabling staff to achieve their full potential which can help address any disability pay gap.
• Avoiding legal challenges for discrimination.

Identifying when someone needs reasonable adjustments

A person may need reasonable adjustments made in both recruitment and at all stages of their employment.

During the recruitment process 

• Inquire as to whether the applicant needs any adjustments as part of the recruitment process. This could include things such as providing extra time during the assessment, the provision of British Sign Language, and or closed captions. 
• Send an adjustments checklist to candidates regarding any adjustments needed. 

During their onboarding and employment

• Invite new starters to be forthcoming if they may require reasonable adjustments.
• Clearly outline that they can request reasonable adjustments at any time.
• Create and share your reasonable adjustment policy with all employees. 

It is important to continually review whether an employee may need adjustments to remove or prevent barriers in their working environment. It’s also important to review and discuss whether existing adjustments need amending during the following:

• Making physical changes to the working environment.
• Amending working policies and or practices.

To avoid any conflict or breach of legislation you should avoid

• Making assumptions about what a worker can and cannot do because of an impairment. 
• Assuming the worker will know what adjustments will work for them 
• Assuming that disabled workers will want or be able to work from home or in other remote settings.

As a general rule consider that everyone’s experience is subjective, and workers with similar impairments may require different adjustments. Some may not know what works best for them so be prepared to test and revisit the agreed reasonable adjustments over time.

Good practices to follow 

Have a conversation with the employee about any barriers to hybrid working and discuss what workplace adjustments they need in different working environments. 

Discussing potential adjustments with an employee

If an employee has made a request for adjustments, ensure you acknowledge the request and put a plan in place to action it promptly.

Before the discussion, ask the employee if they need any adjustments so they can participate in the meeting. This could be having a trusted person or union representative in attendance with them. 

Some workers may not feel comfortable discussing their disability with employers, particularly if they have recently developed their health condition. This could also mean that they don’t yet fully understand the long-term requirements they will need moving forward. 

Offering support and letting your employees know that you are able to assist them will make them feel more comfortable in talking about it. Also, allowing them to submit any suggestions prior to the conversation can help facilitate the discussion.

If an employee has made you aware of their impairment or barriers to hybrid working in advance of the conversation, then consider this information and be sure to plan to discuss this in the meeting. 

Consider Health & Safety

Think about any health and safety considerations and risks that you will need to discuss with your employee. This applies to both the business premises and the home working environment. Consult the HSE guidance to help facilitate this conversation, or you can contact the Health and Safety advisory team at Croner for more information. 

All conversations should be confidential and help in a private setting without the chance of disturbance. You should also take the employees comfort into consideration with this, so consider if in-person or online is appropriate. 

Information disclosed to you by the employee should not be disclosed to anyone else unless this is absolutely necessary, and you have discussed this with your employee as to what information you will be sharing and the reasons for it. This information can still only be shared with the employee's consent.   

Ensure that you comply with data protection law at all stages of the process and be sure to share a summary of discussions and agreed outcomes with the employee. 

Identifying barriers to hybrid working 

• Discuss directly with your employee about challenges and barriers they face in their working environment.
• Encourage them to lead discussions.
• Give them plenty of opportunity to explain their situation.
• Ask questions that are easy to understand and non-judgemental. 
• Employ active listening.
• Be prepared for silences.
• Be patient.

Please note: It is for your employee to decide how much information about their impairment that they wish to disclose. 

Ideas for discussion points

Start by explaining your role and responsibilities regarding reasonable adjustments and what you need to discuss, how you will use the information discussed and who else may need to be informed. Reassure them that the purpose of the discussion is to help them in both their health and with thriving at work. 

Suggested questions: 

• What elements of your role and working environment do you consider a barrier or potential barrier to performing your role? 
• Where does this impact you? This could be locations such as the premises, at home etc. or in settings and situations like online meetings etc. 
• Is the impact on you likely to vary or change over time?
• Do our organisation's hybrid working arrangements create potential barriers for you? For example, are you able to take part in and contribute to online and hybrid meetings?
• Do you have the relevant IT equipment, software and physical equipment you require in both the business premises and for remote work?

 

Identifying adjustments for overcoming barriers to hybrid working

Once the challenges have been identified you can put the required reasonable adjustments in place. If something has been considered a reasonable adjustment, then you as an employer must pay for it. The cost of the adjustment can be taken into account as to whether the adjustment is reasonable or not. 

However, consider that the cost of making adjustments to help a disabled employee is often minimal and will benefit your business by allowing them to maximise their working potential and productivity. 

Useful tips:

• The responsibility to suggest adjustments sits on you, the employer. Not the employee. However, you can both suggest adjustments that could potentially help.
• Ensure the employee knows about the Access to Work scheme. 
• Check if your company has an occupational health scheme. Occupational health assessments can help inform discussions and decisions.
• The legal responsibility remains with the employer with regards to making reasonable adjustments. Even in the case of the involvement of Access to Work or occupational health services.
• Adjustments should be reflective of the worker and be tailored to their individual requirements. This could include a combination of adjustments.

Types of adjustments:

• Digital support.
• IT and computing equipment.
• Furniture.
• Etiquette relating to online and hybrid meetings.
• Travelling arrangements.
• Policies and practices regarding remote workings.

Please note: This is not an exhaustive list and just intended as guidance, for expert advice call our HR advisory team on 0800 470 2830.

Additional: Working from home should not be used as a reason to avoid making reasonable adjustments to business premises or other remote settings. 

It’s advisable to employ health and safety assessments at home and other remote locations, to identify barriers and required adjustments. Employers are legally required to set up workstations in line with the appropriate guidance for all employees.

Discussion points to consider:

• Do you have any suggestions for adjustments in addition to those already discussed?
• Tell me about any adjustments that have worked for you before in similar situations.
• Are there any adjustments that did not work for you before?
• Are you aware that you may be able to get funding and support through Access to Work for support and adaptations?

The worker can come back with thoughts and suggestions, having gone away and thought about the initial discussion. As an employer you can also refer to other support services for advice. 

Implementing reasonable adjustments

Once the adjustments have been agreed with the worker then they should be implemented promptly. This includes delivery and installation of any equipment in the employee’s home working environment. Delaying unduly could open your business up to a claim of unlawful discrimination.

Make sure you update the worker on progress throughout. If the worker is unable to work because of a barrier identified with them, you should discuss interim arrangements. 

Potential interim arrangements:

• Temporary changes to a job role or working practices and procedures.
• Potential paid disability leave (doesn’t count towards sick leave).

Tips for implementing adjustments:

• Ensure that you have considered what adjustments the worker might require at all the locations at which they work or could work.
• Agree to provide updates on progress and any delays.
• Keep notes of your conversations and decisions and share these with your worker.
• Treat health and disability-related information, including adjustments as confidential.
• If a reasonable adjustment will not work without sharing some disability-related information with colleagues, discuss with the worker what information would need to be shared and why.
• Consider using an ‘adjustment passport’ to record the adjustments the worker has in place.
• Provide training for the disabled worker to use the reasonable adjustment, for example, to use assistive technology.
• Train managers and other colleagues, where necessary, to support them to implement the adjustments in practice.

In the event an adjustment is not considered reasonable

If you have considered all factors and decide that the adjustment request is not reasonable, then provide a detailed written explanation to the employee. You should also include details of any appeals process. Following an internal appeal, if there is still disagreement, then only an Employment Tribunal can decide this.

Reviewing adjustments

Changes in role or circumstances can render reasonable adjustments that previously worked, obsolete. This is why it is important for employers to review adjustments regularly and to act with urgency when there is a change in circumstances. 

Helpful tips on reviewing adjustments:

• Agree on a regular review period.
• Keep detailed notes of all meetings for future reference.
• Create a safe space for open discussions between you and your employee.

Make your work environment accessible and inclusive

Whilst you don’t need to anticipate every single future possibility when it comes to reasonable adjustments, you should consider making your workplace more accessible in general. This will make the workplace inclusive for all staff and serves as preparation for when adjustments are legally required.

It is good practice to clearly outline that your organisation is committed to inclusivity and accessibility for all current and potential staff.

For more information on reasonable adjustments in the workplace and how you can apply them to hybrid and flexible working situations call our dedicated team of experts.

Croner has been helping employers with everything HR, Employment Law and Health and Safety for over 80 years. Call today on 0800 470 2830.