Category: Reasonable Adjustments

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Disability Duty of Care Employment Law Equality Act 2010 Health and Safety HR Lousha Reynolds Mental Health Neurodiversity Reasonable Adjustments Risk Assessment Sick Pay Stress

Stress at Work: More than just a bad day

Woman with head in her hands leans over a desk with a laptop in front of her

As we mark Stress Awareness Week 2026, we’re looking at the legal framework that governs mental health in the UK workplace.

Stress isn’t just a HR issue. It’s a significant legal responsibility. Whether you’re managing a team or navigating your own workload, understanding the boundaries of the law is essential for a healthy, compliant work environment.

1. The legal duty of care

Under the Health and Safety at Work etc. Act 1974, employers have a statutory duty to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees. This isn’t limited to hard hats and trip hazards. It includes mental wellbeing, too.

  • Risk Assessments: Just as you’d assess the dangers of a faulty wire, you must assess the risk of work-related stress.
  • The Management Standards: The HSE (Health and Safety Executive) outlines six key areas that, if not managed, lead to poor health and reduced productivity: demands, control, support, relationships, role, and change.

2. When stress becomes a disability

While stress itself isn’t a disability, the effects of prolonged stress, such as clinical depression or anxiety disorders, often meet the criteria under the Equality Act 2010.

An employee is considered disabled if they have a physical or mental impairment that has a “substantial and long-term adverse effect” on their ability to carry out normal day-to-day activities.

What this means for employers:

  • If stress triggers a disability, you have a legal obligation to make reasonable adjustments. This might include:
    • Flexible working hours or “soft” start times.
    • Redistributing certain tasks to other team members.
    • Providing a quieter workspace or more frequent breaks.

3. Avoiding a personal injury claim

If an employer is aware (or ought to have been aware) that an employee is struggling and fails to act, they risk a claim for negligence. For a claim to succeed, the psychiatric injury must have been “reasonably foreseeable.”

The Red Flag Rule: If an employee tells you they’re struggling, or if their performance suddenly dips alongside signs of burnout, the clock starts ticking. Ignorance is rarely a valid legal defence once the signs are visible.

4. Practical steps for Stress Awareness Week

To stay on the right side of the law (and keep your team happy), consider these three actions:

ActionPurpose
Wellness Action Plans (WAPs)A proactive tool for employees to share what helps them stay well.
Training for ManagersEnsuring supervisors can spot signs of burnout before it becomes a grievance.
Open CommunicationReducing the stigma so employees feel safe raising issues early.

Work-related stress is often a symptom of systemic issues rather than individual weakness. By treating mental health with the same rigour as physical safety, UK businesses can avoid costly employment tribunals and, more importantly, foster a culture where people actually want to work. This year’s campaign, led by the Stress Management Society, focuses on the theme #BeTheChange, encouraging small, consistent, and positive actions. We think that’s a great place to start.

CONTACT US

We’re here to help with any questions or concerns you may have. Whether you need expert advice or would like an initial conversation about our services, pricing, or the options available, please don’t hesitate to get in touch. At Refreshing Law, what sets us apart from other law firms is that you’ll get to speak to an experienced employment lawyer right from the very first call.

02920 599 993

07737 055 584

lreynolds@refreshinglawltd.co.uk

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Lousha Reynolds
Refreshing Law

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Anna Denton-Jones Disability Discrimination Law Employment Law Reasonable Adjustments

Knowledge November 2024

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Around this time each year, we focus on an in-depth employment law topic. This year in Knowledge November, we’re deep diving into reasonable adjustments for those with a disability. Click below to view the latest editions:

Knowledge November 2024 – week 1

Knowledge November 2024 – week 2

Knowledge November 2024 – week 3

Knowledge November 2024 – week 4

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Reasonable Adjustments Right to Work

Reasonable adjustments for a disability

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I have had a handful of recent cases where Occupational Health have advised employers in relation to employees with anxiety problems that the employee’s duties exacerbate their condition.

In all of these cases a recommendation has been reducing telephone duties so that the employee is taking less calls during the day or completely stopping telephone duties altogether so the employee is, for example, focusing on emails rather than telephone calls. In these cases, the employer has done entirely the right thing in trying to follow the Occupational Health advice, adjusting the duties accordingly, but there has been no plan for the long term. What is accommodatable initially and what is planned for when, after a few months, the employee has got into the habit of not dealing with telephone calls either at all or dealing with only a few? If you aren’t careful you end up in a situation where the employee is not performing large parts of their role and everyone is stuck.

Rather than agreeing outright to the adjustments, it may be sensible to agree to a temporary adjustment with a discussed plan for how you get from that place of a reduced requirement to carry out a particular activity and back to the contractual duties being performed.

To put it another way, given the cost it takes to support somebody’s mental health to make adjustments, it is misleading to alter things that are not going to be able to be accommodated in the long run. That just creates false expectations and could be achieving more harm than good over time.

Alternatives to reducing the duties completely might be:

  • Less calls, so allowing more time between calls in order to take breaks;

  • If there have been difficult calls, having a strategy for what steps will be taken around managing the feelings that arise from those difficult calls; maybe discussing it with the manager or taking a time out;

  • Other steps that might be agreed as part of a work related action plan.

Remember Occupational Health are just providing you with suggestions – it is up to you to decide, as an employer, whether or not you can accommodate those suggestions. It is possible that you will have roles within your organisation that cannot actually be adjusted to prevent some core duty of that role taking place. In that scenario you might actually be saying no you can’t make a particular adjustment because it is not reasonable to do so.If we aren’t making an adjustment then we need to be able to justify why not to a Judge, if that ever became necessary, so having evidence to back up that decision will be useful. Is there  evidence of how many phone calls a day are taken in that role?  What is the proportion of the day spent doing other activities? Are the phone calls critical to generating the work that the person then does?

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disability Employment Law Employment Rights Act 1996 Equality Act 2010 Protected Characteristics Reasonable Adjustments

Disability and reasonable adjustments

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If as a result of somebody’s disability they become unable to do the current role that they are employed in and the employer is looking to exit the employee from that position, they are obligated to look at alternative employment. This is the case in unfair dismissal law, before you even think about the disability angle.

In a recent case (Miller v Rentokil 2024 EAT 37), the particular employee concerned had multiple sclerosis, which is a deemed disability under the Equality Act 2010, a bit like cancer, ie. the employee does not have to jump through hoops to show that there is a substantial disadvantage, has a long term effect and has difficulty with normal day to day activities. They are deemed as disabled, so we move directly to consider how they have been treated.

Once the employee has a disability, then the duty to make reasonable adjustments kicks in. In this case, the employee was a field based pest controller and the role involved him working at heights for 40% of the time. He could no longer do this and could only work very slowly. This particular employer looked at other jobs within the organisation and put him forward for an administrator role but decided not to recruit him and dismissed him.

He claims that failing to place him in the administrator role on a trial basis amounted to a failure to make a reasonable adjustment. The Tribunal upheld his claim, as did the Employment Appeal Tribunal. The burden was on the employer to show that it was not reasonable to have put that person into the role on a trial basis. They clearly couldn’t convince a Tribunal of this. On an objective assessment clearly they believed that he met the essential requirements of the job and a trial could have been successful.

The way I look at it, the employer is going to have to convince the Tribunal why it couldn’t do this, and why the employee couldn’t be trained into the role, particularly when it is a large employer. For example, somebody who isn’t used to using computers on a day to day basis might be trained and adapted into doing so.

In this particular case, the employer had actually set tests in verbal usage and maths in relation to their standard interview process. These tests were ones that the employer applied to everybody applying for roles and the Claimant scored 16 out of 30 in the verbal usage test and 7 out of 30 in the maths test. It was clear that the employee didn’t have experience using Excel, the spreadsheet programme, which perhaps explains why the decision maker in the case, a recruitment manager, decided not to slot the employee into the vacancy. It did not however consider any retraining or any trial.

In the case, they went back to Archibald v Fife Council from 2004 and Lady Justice Hale’s summation that making reasonable adjustments requires the employer to treat the disabled person more favourably than others. This too was the case of a manual worker no longer able to carry out her duties for mobility reasons. Lady Justice Hale pointed out that there is no law against discriminating against people with a background in manual work but it might be reasonable for an employer to have to take the difficulty that that person would face into account when considering the transfer of a disabled worker who could no longer do that type of work. Essentially I think that means being more patient and accommodating with someone making a transition.

In this particular case, the administrator role was a more junior one than the technical role the employee had taken on previously. They took into account the fact that his technical knowledge and experience in doing the manual job would actually assist him in being able to be an administrative support worker to those other colleagues doing that role.

They weren’t unsympathetic to the employer having concerns about whether or not he could do the role, but the key to assessing that would have been the trial period.

The other flaw in the employer’s process was not just slotting the employer into that trial. Instead they seemed to have just treated him as any other applicant for the role and possibly even put him up against other people in a recruitment process. The duty to make reasonable adjustments is about prioritising the employee.

The length of the trial period that the courts were talking about in this case was a 4 week trial. Given that is actually quite a short period, it would be wise to pay an extra month’s salary whilst assessing somebody’s suitability in an alternative position rather than dismiss.

Anna Denton-Jones
Refreshing Law

Categories
Disability Employment Law Employment Rights Act 1996 Health Conditions Mental Health Reasonable Adjustments Return to Work Sick Pay

Changes and guidance on fit notes for employers and line managers

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The government has just published changes to its fit note guidance for employers and line managers. It even included a handy checklist so that employers can avoid painfully drudging through the lengthy (4,462-word) document. The checklist includes the necessary steps and information that employers should have at their disposal when an employee has been issued a fit note.

Firstly though, what is a fit note? It’s a note from a certified healthcare professional who has determined after consultation with an employee, whether or not they ‘may be fit for work’ or are ‘not fit for work’. A fit note allows employers to discuss with their employees any health conditions that may prevent them from undertaking their work as usual. It also gives employers the chance to have an interactive discussion with their employees to establish tailored measures suited to both parties going forward.

The changes to this guidance as of 2022 state that where these fit notes had previously been required to have a signature of ink, they are now moving forward (as we all are) to accepting just the name and profession of the issuer. This enables the fit notes to be received and sent digitally. The DWP also expanded their accepted list of healthcare professionals who can certify the notes to include nurses, occupational therapists, pharmacists, and physiotherapists. It should be noted that although digital notes are embedded in primary care settings (GP), they are not yet in secondary care settings (hospitals), and so a pre-printed note may still be used by employees recently discharged from hospital.

There are a number of general rules that surround fit notes, so I’ll just outline the important ones to familiarise yourself.

In the first 7 days of sickness, employees can self-certify. If your organisation requires medical evidence within this time, any costs incurred by the employee for accessing a healthcare professional will be yours to cover eg:- where there has been a pattern of absence say on a Monday and Friday and you tell the employee that any further absence on these days will require a fit note.

The length of a fit note can cover a maximum of 3 months at a time during the first 6 months of sickness. Any specific time decided will be determined by the clinical judgement of the healthcare professional.

Private (non-NHS) healthcare professionals can produce reports like a fit note which can be considered. Private medical certificates or the Allied Healthcare Professionals Work Report can be accepted with no further need to obtain a further note.

Fit notes can come in a variety of ways, whether that be computer-generated and printed out, or sent digitally to your employee. Digital fit notes will include a barcode so that they can be scanned by employers and added to sickness records.

Now onto the fitness for work assessment and what that means for employers. The healthcare professional will state whether the employee is fit for work or not, and the length of time that any adaptions are required/the amount of time the employee is unable to work for. If they ‘may be fit to work’, the healthcare professional will give general recommendations on adjustments to be made for the employee to work safely or return to work entirely. These recommendations are not binding and if the recommendations cannot be implemented given the nature of work, the fit note can then be used as evidence for sick procedures.

General adaptions you may choose to explore as an employer include:

  • Phased return to work

  • Altered hours

  • Amended duties

  • Workplace adaptions

While at first glance these fit notes may appear to be potentially obstructive, by supporting your employee to stay or return to work you may actually avoid absence costs and minimise disruption for your organisation. Having an open discussion with your employee about adjustments will serve to create a more trusting work relationship that can only benefit both parties!

Martha Regan
Refreshing Law

 

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Anna Denton-Jones Disability Discrimination Law Diversity Duty of Care Employment Law Employment Rights Act 1996 Equality Act 2010 Offer of Employment Reasonable Adjustments Recruitment

Employers making reasonable adjustments in recruitment

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An applicant for a job who had dyspraxia asked to make an oral job application instead of filling the online form that the employer required. The employer emailed him with repeated requests asking him to explain what his difficulty was with the online process. The individual had difficulty with written communication, indeed that was the reason behind his request in the first place, so he also struggled to deal with these emails. The employer ought to have realised this as they knew about the dyspraxia. The Tribunal ruled that a reasonable employer would have phoned the applicant in order to understand their situation more fully.

A factual quirk of this case is that the applicant was seeking to return to the same team, with the job applications being judged by the same line manager who had dismissed him 8 months previously (failed probation). Understandably, that may have been behind the employer’s reluctance to engage with the individual but what you don’t get to know is to what extent they knew about the dyspraxia during the probationary period and what reasonable adjustments were made at that stage to assist the individual in order to level the playing field and put them into a position where they might have been able to pass the probationary period.

This case illustrates the importance of making reasonable adjustments not only for your own employees such as probationers but for all job applicants. It also illustrates how sometimes the reasonable adjustment is something very cheap and easy to do (a phone call instead of an email) and how as soon as the employer has knowledge there is a disability they should be making adjustments not waiting for the employee to ask.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Employment Law Employment Relations (Flexible Working) Act 2023 Employment Rights Act 1996 Reasonable Adjustments Remote Working Return to Work Working from Home

Video | The Employment Relations (Flexible Working) Act 2023

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Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the new Flexible Working Act (which comes into force in July 2024). This video focuses on the processes that need to be followed under the new Act.

Anna Denton-Jones
Refreshing Law

 

Categories
Anna Denton-Jones Employment Law Employment Rights Act 1996 Equality Act 2010 Reasonable Adjustments

Reframing your thinking around reasonable adjustments

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I regularly come across the attitude that it is for the employee to ask their employer for the reasonable adjustments that they need.

Firstly, this is not correct – the Equality Act 2010 places an obligation on the employer to make reasonable adjustments, irrespective of whether the employee concerned has asked or not, as soon as they are aware of the disability.

Apart from the legal position just described, it doesn’t make sense to be waiting for people to ask. People typically are not very good at asking for what they need and when being forced to ask for help, feel vulnerable or judged. What is more common is that it is just human nature to avoid asking for what you need and wait until things get really bad and relationships are probably strained. We are all familiar with accusations being hurled back to organisations in grievances. So by the time somebody gets to vent their spleen in a grievance, everything has built up to a fever pitch.

Instead of reasonable adjustments being seen as something as problematic and burdensome to an employer, we need to shift our mind-set so that we are thinking that we are just doing something ordinary. Most of us have the tools in our day to day lives to help us – I know on my desk right now, I have a lengthy to do list, you might have set your phone to remind you of something or you might have worked out on paper the things you want to make sure you get across in a meeting today. These are all examples of adjustments that are being made to help us do our jobs. If we make adjustments with a disability, we are just doing the same, it’s just that the tools a person might be using might differ from those that we need to use. We shouldn’t be thinking about it as dealing with some “deficiency”.

When we think about reasonable adjustments, it’s just giving people the tools they need to do their job effectively and we need to stop treating disabled people as “less than” or “different” and just embrace that all of our employees are individuals and require different tools to do their jobs. Some managers get this and will be having open conversations with all their team to look at how they can support their staff member and supply those tools.

In particular, if the person hasn’t done the job before, because they are a new starter, it may be very difficult for them to know from the job description actually what they need. Equally, a new arrival is not going to know what things may be available or a person may have only recently received a diagnosis and be working out themselves what they need. Disabled people in particular may not be confident or articulate at addressing their needs and lots of people who would be classed as disabled within the meaning of the Equality Act will not be aware of this ‘status’ and therefore not aware of the possibility of reasonable adjustments.

Access to Work is a brilliant service run by the Government that includes coming into the workplace to assess what might be needed. It costs nothing. What’s not to like?

Adjustments are often quick, easy and cheap ways to help someone do their job. We’d buy a salesperson a new car to do their job so why not buy another employee different support they need to do theirs?

Your homework: be positive about making adjustments.

Refreshing Law Ltd
12 September 2022

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Anna Denton-Jones COVID-19 Disability Duty of Care Employment Law Equality Act 2010 Health Conditions Maternity Pregnancy Reasonable Adjustments Remote Working Return to Work Working from Home

Déjà vu — Shielding

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If this feels familiar, we have been here before…

In Wales
The clinically extremely vulnerable have been advised to shield in Wales since the 22 December 2020. Shielding for the clinically extremely vulnerable will be paused on 31 March 2021. The fact that the word “pause” is being used indicates that this position may change again in the future so be prepared to be flexible.

Working from home should still be the position wherever that is possible. Where that is not possible, employers will have to take measures to make the workplace COVID secure which may involve changing the person’s duties etc.

In England
The clinically extremely vulnerable have been shielding since 5 January 2021. As of 1 April 2021, they will no longer be advised to do so and will not be eligible for statutory sick pay on the basis of being advised to shield.

The advice is still that they should continue to work from home wherever that is possible, so employers ought to be attempting to facilitate that. Where they cannot work from home, then they are advised to attend their workplace and employers will be under a duty to take measures which will reduce the risk of exposure to COVID-19 in the workplace. That may involve changing the person’s duties etc.

Both
Furlough is an option where the employer decides working from home isn’t possible. The employer would need to consider the discrimination risks associated with, for example, singling out a worker for furlough, when their category of colleague was not also being furloughed.

Anna Denton-Jones
Refreshing Law