A triumph for common sense, or simply too labyrinthine for all but the best resourced HR departments to successfully interpret? We pick our way through the recent raft of disability case law for employers.
Your employee does not have a disability. But their daughter does. Must you as the employer make reasonable adjustments for those associated with disability, as well as those directly affected?
That was the issue raised in Hainsworth v Ministry of Defence, in which Mrs Hainsworth alleged that the MoD’s refusal to agree to her request for a compassionate transfer was a breach of its obligation to make reasonable adjustments.
Mrs Hainsworth worked in Germany. She believed a move back to the UK would enable her daughter, who has Down’s syndrome, to access specialist facilities unavailable to her in Germany. The MoD refused the request, and a tribunal upheld the decision that a reasonable adjustment is triggered only when the employee – not a dependant or anyone else – is disabled. The Court of Appeal agreed.
Requesting flexible working
It’s worth remembering that any employee can request flexible working for family reasons – and from 30 June 2014 that right extends to any employee with 26 weeks’ service or more. So where the request is not for a permanent transfer, as in the above case, but for ‘flexibility’ the employer would have to consider the request in a reasonable time and decline only if there were business reasons to do so. You can find more about what constitutes ‘business reasons’ in this ACAS guide.
What isn’t clear from the Hainsworth case is whether a female employee could claim indirect discrimination in relation to a refusal to make reasonable adjustments for caring for a disabled child. The point of law at issue was the scope of reasonable adjustments, not discrimination. Yet is it possible that, as the law still tends to treat women as the default child-rearing parent, the Court of Appeal has upheld a position that could, in some circumstances, be discriminatory?
Do ‘reasonable adjustments’ include extending sick pay?
Whatever your contractual arrangements for paying sick pay, should those arrangements change when the person off sick has a disability?
That was the case brought by an HMRC employee in O’Hanlon v HM Revenue Customs. Having exhausted her contractual sick pay period (6 months full pay; 6 half), O’Hanlon claimed that HMRC had failed in its duty to make reasonable adjustments – and in its responsibilities under the DDA 1995 – in not paying sick pay for the entire period of her absence.
The Court of Appeal found in favour of HMRC, commenting that any requirement for employers to judge what was or was not a disability-related absence, or to treat those absences differently from anyone else’s, would build undue burdens and unfairness into the system.
Yet the court fell short of saying that additional payments would never be a reasonable adjustment, suggesting only that it would be a rare instance – yet failing to say just how rare.
One exception is almost certainly where the employer has contributed to the employee’s length of absence. But did the Court of Appeal envision other circumstances? If so, they didn’t say.
It’s not that the case law is actively contradictory (although as the Hainsworth case shows, it certainly has potential). But as every case appears to reveal another list of ‘but what ifs…’ that will remain unanswered until tested in court, it’s difficult for payroll and HR professionals to operate with all the certainty they need.
Still, if the case law seems determined to make interpreting the legislation awkward, at least there’s one way to make your day to day HR operations easier. Talk to us about Octopus, the HR management and admin system.