Failing to make reasonable adjustments – be aware of your responsibility!

A clinically extremely vulnerable care worker who was forced into work during the pandemic against NHS advice has won a claim for failure to make reasonable adjustments. An employment tribunal heard that the employer failed to make reasonable adjustments and either “deliberately or through an oversight” failed to acknowledge how vulnerable the employee was, forcing her to choose between the risk of catching Covid or only receiving statutory sick pay (SSP) during the pandemic.

The employee was a carer and team leader in a Care Home. She had been advised by the NHS that she was clinically extremely vulnerable because of her Crohn’s disease, which instructed her to not leave the house and avoid all face-to-face contact for a minimum of 12 weeks.

The tribunal described the letter’s instructions as “explicit” and said a key finding of the tribunal was the Care Home’s failure to pay “sufficiently close attention” to her condition and the consequences of it during the pandemic. It found that the Care Home viewed her as ‘at risk’, rather than the ‘very high risk’ category she was actually in.

The employer released a guidance letter to staff on 18 March 2020 advising it would pay SSP for 14 days for those who were ‘at risk’ and having to self-isolate. The employee’s letter from the NHS advised her to sign up to the government’s register of clinically extremely vulnerable people and reminded her she should not leave her home. The letter stated: “This letter is evidence, for your employer, to show that you cannot work outside the home. You do not need a fit note from your GP.”

The employee told the tribunal she took the advice of the letter and was absent from work from 23 March until 31 July, with her first shift back to work commencing on 3 August, as she had another letter advising her shielding period had been extended, which lasted for 19 weeks in total.   She found that her employer’s decision to only pay SSP caused her a “significant financial loss” as she ordinarily received £405 per week, and this was reduced to approximately £95 per week on SSP.

The employee then made a request to her employer on 26 March 2020 to apply to be furloughed under the coronavirus job retention scheme (CJRS) and attached the letter she received from the NHS. She received a reply from her line manager, on 6 April 2020, who said that as she a key worker and the care home was still operational, so furlough didn’t apply.

The tribunal found that the line manager misrepresented the context of the employee’s letters and risk status and put the onus on the employee to decide if she should attend work.  The judge stated that, as a care provider, they could have reasonably expected to know the difference.

A remedy hearing is yet to be scheduled to determine compensation awarded but it is expected to be significant.This case evidences that employers must consider their duty to make reasonable adjustments to overcome something that puts a disabled worker at a disadvantage compared with workers who do not have that disability.

Always seek advice when considering reasonable adjustments to be made, contact 121 HR Solutions on 0800 9995 121

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