Should you wait for a diagnosis before implementing reasonable adjustments?

What do you need to consider about reasonable adjustments?

Managing long-term sickness absence is a balancing act for employers in considering the needs of the employee as well as the operational needs of the business. Until such time as a formal diagnosis is confirmed it can be difficult to know how to support the employee, or in cases of sporadic absence, whether you have the resource to.

Why does the employee not have a formal diagnosis?

There could be many reasons why an employee doesn’t yet have a formal diagnosis. Whether it is down to NHS wait times and lengthy delays between appointments, or personal circumstances that have impacted their ability to pursue symptoms such as relocating or registering with a new GP practice. It may also be that historically the employee has not experienced symptoms of any condition and therefore they are only in the early stages of trying to follow this up with medical professionals.

Will an employee be considered disabled without a formal diagnosis?

The test for disability in Employment Law is a legal test rather than a medical one. Under the Equality Act 2010, a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.

This means that the employee does not need to have a formal diagnosis to successfully argue they have a disability for the purposes of the Equality Act.

In an Employment Tribunal claim, parties will often disagree as to the status of disability. Whilst medical evidence and a formal diagnosis can support a claim, it will ultimately be a matter for the Tribunal as to whether they accept the employee is disabled under the Equality Act 2010.

What can you be doing as an employer to support your employee?

1. Return-to-work meetings

If the employee has let you know that they are pursuing matters with their GP in an effort to understand symptoms by way of formal diagnosis, you can use the meetings to check on the status of any appointments and consider setting a review period for absences to improve. 

As a starting point, the return-to-work meeting after each absence is useful tool to discuss the absence, whether it is likely to reoccur and whether there is anything you can be doing to improve health and attendance.

2. Refer to Occupational Health

Another consideration, whilst waiting a formal diagnosis, is referring the employee to occupational health for a detailed assessment of their fitness in relation to their specific role.

Not only does a referral to occupational health help identify any barriers for an employee to return to full duties, but you can also ask for advice on the timescales for a likely return to full capability as well as what adjustments you can put in place. The recommendations made in the report and your compliance with them can then be relied on in any subsequent formal process.

3. Reasonable Adjustments

If an employee is disabled under the Equality Act, you will have a legal duty to make reasonable adjustments to avoid the disadvantage the disability causes the employee at work. 

For example, this could mean working from home, lighter duties or phased returns and could even extend to making adjustments to your sickness absence policy for any absences that are the result of or linked to a disability.

The Equality and Human Rights Commission in its Employment Statutory Code of Practice sets out some factors for an employer to think about when considering what adjustments to implement:

• whether taking any particular steps would be effective in preventing the substantial disadvantage
• the practicability of the step
• the financial and other costs of making the adjustment and the extent of any disruption caused
• the extent of the employer’s financial or other resources 
• the availability to the employer of financial or other assistance to help make an adjustment (e.g. Access to Work); and
• the type and size of the employer

It is important to keep a written record of all adjustments implemented or not and the business reason for this. 

4. Regular Reviews

Setting a review period is a good way of tracking progress with the employee. If at the conclusion of the review period matters do not improve, and you feel you have exhausted all other options including making adjustments to the role, redeployment opportunities or a phased return, you may consider commencing a formal process. 

Summary

The primary consideration for disability status in an Employment Tribunal claim will be the impact the impairment has on the employee and their day-to-day life, and not whether they have received a formal diagnosis. It is therefore important to consider the above steps and how you can support the employee before taking formal action under any sickness absence policy.

Our team are able to assist with a range of enquiries and HR support. If you have concerns in respect of managing long term sickness absence and would like any support, please contact us on 01983 897003.