What is an employer’s obligation to make reasonable adjustments when undisclosed by employee during initial application?Posted in : Seamus Says - Employment Law Discussion on 9 April 2021
If you have an employee who did not confirm at application that they had the need for any reasonable adjustments but now after a period of one year they need a reasonable adjustment, what is the employer's obligation?
Seamus: Well, you know, look, I think that we all ask for potential applicants and employees to be open with employers in relation to any needs that they have or if there are disabilities there, but I don't think that after a year's employment that the employee could be penalised. The employee will have their employment rights at that point. They're obviously protected from any sort of discrimination on the basis of disability arising in relation to reasonable adjustments. So, again, it would be about meeting with the employee and getting a clear understanding of what the situation is and what the problems are, and what the requested adjustments are for the employee . . . with the employee, and that may mean engaging in medical evidence, that may mean getting a occupational health report or a specialist report or possibly even just a GP report.
I can certainly understand the frustration. It's a common occurrence where someone joins an organisation and does not disclose, you know, medical issues or disabilities in advance of that and then they arise during the course of their employment, but it wouldn't be a get-out-of-jail card for the employer since they can say, "Well, you didn't disclose that at the start of your employment and therefore we don't need to do anything about it." And once they become your employee there is an obligation that arises, so it is working with the employee, and I suppose, you know, it's getting to an understanding of why the issues are arising now, you know, without prejudging that because it may be to their detriment that the employee hasn't, you know, provided any information about any concerns or issues that they have, but certainly my view would be that there is an obligation on the employer to investigate and make those reasonable adjustments where possible.
Scott: You can understand the employee's point of view as well because if they declare thing on the form, then there's a pretty good chance they're not going to get an interview even though reasonable adjustments should be made for somebody but, you know, the experience of people who are disabled and the levels of unemployment there are ones where you can kind of understand somebody holding back. If the question hasn't been asked, they're not going to volunteer it, and therefore it leaves an employer in a bit of a difficult position, but the employee's thinking well, you know, "My best chance to get a job is to not tell them I'm disabled."
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