- Posted Wednesday January 30, 2019
Here at FPM we understand that your staff members are your best resources. A query we often receive is how to balance the needs of a colleague who has experienced a decline in health with the need of the practice to provide a high level of service and care to patients.
Although the specifics will depend very much on the role of the employee and the condition they have, the following legal principles should be considered…
Providing reasonable adjustments
Where an existing employee becomes disabled, either gradually as a result of the onset of an illness or suddenly as a result of an accident, the practice must address the issue of what reasonable adjustments could be made to accommodate the employee's needs and facilitate keeping them in employment.
The key objective should be to take all reasonable steps to enable the employee to continue working, or, where there has been a period of absence from work, to resume working without being at a disadvantage.
It’s important to note that the duty to make reasonable adjustments places the responsibility firmly on the employer to identify and initiate any adjustments. It is not up to the employee to propose alterations to working arrangements, although the employer should of course consider any suggestions the employee does make.
Adjustments to current job
Another possible course of action could be to make adjustments to the duties of the employee's current job to allow him or her to continue working. This may involve allocating some of their duties to others. This might be feasible where the employee's impairment affected only the subsidiary duties of the job, for example if the requirement to perform a particular task occurred only occasionally rather than on a regular basis.
While this type of adjustment may be appropriate, account must also be taken of the impact on other employees of taking on additional duties. In these circumstances it would be advisable to:
- Seek medical advice concerning the employee's ability to perform various elements of his or her job;
- Discuss any proposal to alter the duties of the job directly with the employee in order to gauge how he or she would feel about it;
- With the disabled employee's consent, consult other employees whose job duties or workload might be affected by any proposed adjustments to the disabled employee's duties;
- Ensure staff are aware that employers are obliged in law to take reasonable steps to accommodate the needs of disabled employees and encourage them to take a positive attitude towards supporting the employee who has become disabled; and
- Take into account any reasonable objections that the employee's colleagues have before making any final decision on what adjustments to make to his or her job duties.
Considering alternative roles
Where an employee is no longer capable of performing their own job, one option is to offer a move to a different job, if a vacancy is available. The viability of this would depend on whether or not the alternative job was one that the employee could reasonably do and whether or not he or she was willing to do it (after training is provided where necessary).
It may also be reasonable for the practice to exempt a disabled employee from any internal procedures that are normally applied to internal transfers, for example a requirement to undergo an interview or rigorous selection test.
In these circumstances, there is no obligation on the employer to maintain the employee's existing level of pay or conditions, although their agreement to the transfer itself and to any contractual changes would have to be obtained.
A transfer without the employee's express consent would constitute a breach of contract as well as unlawful disability discrimination. The employee should, in any event, be fully consulted at an early stage about any proposed transfer.
The practice should provide all required training, including a full induction, and a trial period in the new job may be advisable in order to give both employer and employee the opportunity to review whether or not the new arrangements are working out satisfactorily and whether or not the employee is suited to the new job.
Here are our top tips…
Discrimination claims tend to attract higher than average levels of compensation. The legal fees and the management hours involved in managing a case to completion can also become excessive.
A key area where organisations, and small businesses in particular, tend to struggle is being able to demonstrate and justify any action taken. So what can you do to make the process less stressful?
- Make sure that your practice’s sickness policy or similar includes provisions on how to manage employees with long-term health conditions up to and including terminating employment on the grounds of ill health capability.
- Ask the employee for consent to refer them to Occupation Health sooner rather than later.
- Consider whether an Access to Work assessment is necessary.
- Give serious consideration to any recommendations and be careful of declining them due to cost alone.
- Make sure you make notes of any meetings with the employee and of any reasonable adjustments discussed (even if they are deemed unsuitable), as well as any alternatives considered and any outcomes (positive or negative).
Are you dealing with a tricky HR issue? First Practice Management members can contact us for support with their queries via our email helpline at firstname.lastname@example.org