While the pandemic has exacerbated inequalities for many with disabilities, the widespread adoption of home working has in fact delivered benefits for many disabled employees.
For those who can work from home, the lack of a commute has made a significant difference for some employees with physical disabilities by, for example, removing challenges around travel. Breaks can be taken in an environment specifically adapted for the individual, which can reduce fatigue and pain levels. For some neurodiverse employees, their home environment offers reduced noise and distractions which can affect concentration as compared to an office.
In a survey carried out in August 2020, UNISON reported that 73 per cent of disabled employees working from home during lockdown reported having been more productive and taking fewer sick days in contrast to time spent working in an office. UNISON has called on the Government to introduce a right to work from home for disabled employees. Although it was reported in May that Government sources were considering implementing a right to work from home for certain employees at the end of lockdown, no further information about this has been forthcoming.
Yet despite the positives, the pandemic has of course brought a raft of additional challenges and concerns for disabled employees, not simply connected to health. According to a report from the disability charity, Leonard Cheshire, 71% of disabled people in employment in March 2020 were affected by the pandemic, either through a loss of income, being put on furlough or being made redundant. Furlough, reduced wages as a result of shielding and receiving SSP, potentially greater risks of redundancy, anxiety over cancelled or postponed medical treatment and worry over job prospects are all issues that significant numbers of employees and work seekers with disabilities are having to cope with.
In March 2020 the UK and Scottish Governments classed certain people with health conditions as clinically extremely vulnerable and instructed them not to go to work. During the most recent nationwide lockdown, the current advice for employees in this category is (yet again) that they should not attend work. If adjustments cannot be made to enable them to work from home then according to the latest Government guidance furlough can be offered to those who are “clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus or off work on long-term sick leave”. This does not however cover all disabled staff. In addition, there is no automatic right for an employee to be placed on furlough leave, meaning some disabled employees who cannot attend work due to the pandemic, who cannot work from home and who are not furloughed are only entitled to receive SSP (£95.85 per week). Many employees report feeling like they have to choose between their health and their livelihood.
Employers must remember that while they are being inundated with new rules, regulations and guidance related to the pandemic, their existing duties under the Equality Act continue; this means they remain obliged to make reasonable adjustments for employees with disabilities and must factor this in to their decision making. Employment Tribunals will no doubt be called upon to decide whether individual employers have met their obligations. However, moving away from the black letter law, and regardless of whether a right to work from home is introduced for some individuals, longer term, employers should remember the benefits which many employees with disabilities have reported in connection with working from home, many of which are of benefit to employers, and ensure these are factored in to new ways of working.
Gillian MacLellan is a partner at international law firm CMS