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What to do is a new employee discloses a disability which impacts their role

Andrew Willis, Head of Legal - Croner

Picture this: You’ve finally filled a vacancy and are excited to be welcoming the successful candidate to your team. But on their first day, they say that they need to take every Monday off for the foreseeable future for medical appointments. Not only that, they need to work two days a week from home.

You’re confused. This is the first you’ve heard of it. You advertised a full-time, in-office role. This was discussed during the interview process, and you never came up against any resistance. What now?

Andrew Willis, Head of Legal at Croner, says, “This is a tricky situation that employers will hope they don’t find themselves in. But the reality is that sometimes, the needs of both employer and employee just don’t align – and there won’t always be a workable solution.

“Candidates have no obligation to disclose a disability at any point during the application or interview process. And it’s wise for employers to avoid any questions about their medical history to prevent any potential claims of discrimination. The Equality Act 2010 stipulates that employers can’t reject someone just because they’re disabled: rather if the employee can’t complete the role due to disability, employers may have to at least consider reasonable adjustments or reject them based on other grounds not related to a protected disability.

“If it becomes apparent that a newly recruited employee is not capable of completing essential tasks due to a disability, employers need to consider their position carefully. There are no minimum service requirements for employees to be able to raise a discrimination claim to the tribunal.

“The Equality Act 2010 requires employers to consider whether there are appropriate measures or supports (known as reasonable adjustments) they could implement that would allow the person to carry out the duties required of them.

“What measures would be considered ‘reasonable’ is assessed on a case-by-case basis, looking at factors such as what funding is available to the employer as well as the size and financial resources of the company. Reasonable adjustments could include shorter working days, remote or flexible working, physical changes to the workspace, etc.

“If there are no reasonable alternatives that would enable the employee to continue working, the employer should follow fair procedures and seek to terminate the contract of employment on capability grounds.

“If you explore all reasonable accommodations that could allow your new hire to take up the role and it’s just not feasible to make changes to either the role or the workplace, the risk of the employee making a successful discrimination claim on the grounds of disability should be reduced. Even if you take this step however and follow fair procedures before confirming a dismissal, there is no guarantee of successfully defending a discrimination claim. These claims are examined on a case-by-case basis and ultimately it is very difficult to guarantee that a tribunal will accept your defence.

“The best course of action is to always make clear the working arrangements for any role during the recruitment process. Communicate the businesses’ requirements right from the off, whether that’s the need for employees to work in-office all the time, how many days per week, whether the hours are flexible or not, etc., and seek agreement. Have open discourse on how the employer can support the candidate should reasonable adjustments be required, and then there should be no surprises when new starters join your team with varying requirements.”

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