LEGAL


Dementia in the workplace – what are your responsibilities?


More than 40,000 people under the age of 65 have been diagnosed with dementia in the UK - and 18% of them continue to work after a diagnosis. Employers have a duty to make reasonable adjustments for staff with dementia so that they are not disadvantaged at work. Katie Ash (pictured), Head of Employment Law at Banner Jones Solicitors, provides advice and guidance on what policies and practices should be in place to protect both employees and employers when it comes to medical health conditions.


Earlier this year, a report from the All Party Parliamentary Group on Dementia shone a spotlight on dementia as a disability. There are more than 850,000


people with the condition in the UK and that figure is set to rise to one million by 2025, and two million by 2051, according to the Alzheimer’s Society. It is hardly surprising, therefore,


that the APPG felt the need to carry out an inquiry to determine how people diagnosed with the condition while still in employment felt their diagnoses had been managed by their employer. Research backed up by a survey


of 350 people carried out by the Alzheimer’s Society found that a third (36%) of people questioned with the condition didn’t tell anyone at work about their diagnosis; over half (53%) admitted that their employer wasn’t supportive when they did; and two fifths (42%) said that with adaptations and the right support, they would have continued working longer.


‘Employers of employees with dementia have a legal duty to make ‘reasonable adjustments’ for that employee’


These findings are concerning,


not only because in such cases business owners and decision makers could find themselves facing claims of disability discrimination under the Equality Act 2010, but also because of the missed opportunity to continue to benefit from the expertise of an established employee. Dementia is a disability, and as


disability is a protected characteristic under the Equality Act 2010, employers of employees with dementia have a legal duty to make ‘reasonable adjustments’ for that employee. This could include adapting the working environment – creating quiet spaces; investing in clear signage and labelling; allowing a team member to work from home. And while employers are not


expected to change the nature of a


role, adjustments could also include introducing part-time hours or


flexible working, or reallocating certain duties to ensure that a person with disabilities is able to carry out their job safely and effectively. Having an open dialogue with


the person in question in order to ensure that both parties are clear on what the needs of the individual are, and how the business can best address them, is vital in cases involving a disability. Other key factors to take into


consideration with regards an employee with a neurodegenerative disease such as Dementia and Alzheimer’s includes:


• Differentiating between absenteeism caused by the disability vs other reasons – disciplinary action because of sick leave taken as a result of the condition could be deemed prejudicial.


Social media not always a ‘like’


A recent case at the Employment Appeal Tribunal considered whether a discriminatory Facebook post was made by an employee ‘in the course of their employment’ and if so, whether the employer could be liable for it. The case centred around a security officer (Mr


Forbes) who worked for a high-profile airport. One of his colleagues shared a racist image on her


own Facebook page outside her normal working hours. That image was subsequently shown to Mr Forbes by a mutual colleague who had seen the post and it caused Mr Forbes offence. Disciplinary proceedings were ultimately issued


against the employee who made the discriminatory post, with a final written warning being issued. Subsequently, when Mr Forbes and the employee


were scheduled to work together, he complained to LHA and was as a result moved to work at a different location, without explanation. Mr Forbes later brought claims of harassment and


race discrimination against his employer relying, in part, on the discriminatory Facebook post.


The original Tribunal determined the Facebook


posts were not done ‘in the course of employment’ and therefore dismissed the claim. The EAT also dismissed Mr Forbes’ appeal. Sharing an image on Facebook could, dependent


on the facts of the case, be found to be done in the course of employment. The EAT gave the example where the Facebook page is solely or principally used for the purpose of work, however that was not true of this case. Helpfully, the EAT confirmed that where an


employer considers it appropriate to take action against employees for making discriminatory posts, that in itself will not mean that the conduct complained of is done in the course of employment. Hannah Ball, Employment Lawyer at Howes


Percival LLP, said: “This decision offers useful guidance for employers and is a reminder that they can, dependent on the facts, be held liable for the actions of their employees including posts made on social media.”


business network September 2019 77


• Establishing how – or even if – they would like to notify their colleagues of their condition.


Employers must respect that


choice, with the exception of notifying relevant health and safety personnel. Of course, the key word with regards all the above is ‘reasonable’. Provided an employer has made reasonable efforts to accommodate the person’s disability within a role and they have respected the wishes of the person with regards to communication of the disability; they are unlikely to face a claim for disability discrimination. My recommendation would be


that all businesses look proactively at their workplace sickness policies to ensure that they are as robust as possible in advance of a potential diagnosis, and in some instances seeking legal advice to help futureproof those policies would be prudent – especially in larger organisations where there are a variety of jobs with varying roles and responsibilities.


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