Egg Banjo wrote:
The employer is legally required to make reasonable adjustments. In the case of the goggles analogy, this could include the use of other eye protection types or models, proving protective shields etc. As none of those were shown in the analogy, the sacked employee would win an employment tribunal for unfair dismissal.
. For these purposes a "disability" is any physical or mental impairment which has a substantial, long-term effect on an employee's ability to carry out their day to day activities. As well as the more obvious adjustments (such as to enable access to premises, or the provision of auxiliary aids), the duty to make reasonable adjustments is also required where an employer applies a "provision, criterion or practice" to an employee which substantially disadvantages a disabled employee as compared to those who are not.
In the context of COVID-19, requiring employees to attend the workplace (even if appropriate health and safety measures have been implemented) would likely constitute a "provision, criterion or practice" which would disproportionately affect employees who are vulnerable due to health concerns. Such employees may have a higher risk of infection and/or a higher risk of negative outcomes if they are infected. Some employees may also be newly disabled following infection by COVID-19 (i.e. if they are expected to have on-going long-term health implications). In these cases, it will be incumbent on the employer to consider what reasonable adjustments can be made. Continued working from home may be reasonable in many cases. Employers should also consider whether any additional PPE should be provided to disabled employees who cannot work from home, and whether there are other additional steps that can be taken to afford a higher level of protection to these employees.
Some employers may also encounter employees whose religion and belief includes a requirement which is not entirely compatible with PPE (for example, wearing a beard or a turban may impede the use of masks). Requiring an employee to shave their beard or remove their turban could give rise to potential indirect discrimination claims. In these circumstances, the employer is likely to have a legitimate aim (i.e. health and safety), however, the question will be whether their proposed approach is proportionate. Consideration should be given to whether other types of PPE could be used which would be more effective, notwithstanding the employee's beard or clothing, and also whether duties can be modified to lower the potential risk faced by the employee.
