#BTColumn – Dear HR … What should I do with ailing employee who cannot fully perform?

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Carol-Ann Jordan and Jacqueline Belgrave

Dear HR,

I have an employee who has an illness that will get worse over time. At the moment he is still able to do parts of the job he was hired to do but he is not now able to do all of it.

I am concerned about this situation especially since the new discrimination legislation was passed last year. I feel like I am walking in a mine field and am not sure how to handle this.

When we think about persons with disabilities in the workplace, we tend to think of a person hired with a known specific impairment.

What we tend not to take into account are those instances in which employees may have been able to perform the requirements of the job on starting employment, and who, sometime later, are unable to function in the manner in which they and their employer had originally intended/required.

Their inability to function as originally required may be due to the onset of a progressive condition (i.e. one that gets worse over time) or an accident or some other unfortunate, unforeseen incident.

In other words, the employee’s ability to perform the role in the manner the employer originally prescribed changed as a result
of circumstances completely outside their control, while the requirements of the job remain unchanged.

Under the Employment Rights Act 2012-9, dismissing an employee who is disabled is considered an unfair dismissal in circumstances where you could reasonably be expected to offer the employee alternative employment.

he Employment (Prevention of Discrimination) Act 2020 mandates the employer, upon the request of an employee, to make adjustments for the employee as may be reasonable in the circumstances. These employees are dealing with quite a lot physically, emotionally and psychologically.

Adjusting to their changed condition as well as with trying to navigate a work environment that has not changed to accommodate their condition can be quite a challenge.

The employer now has a legal obligation to ensure the disabled employee is treated fairly and in a manner that is not discriminatory, while at the same time ensuring neither business operations nor service to customers are affected. The adjustments which can be made include:

• allocating some of the duties of the employee to another person;

• altering the hours of work of the employee;

• allowing the employee to be absent during hours of work for the purpose of assessment, rehabilitation or other treatment;

• providing the employee with alternative employment;

• assigning the employee to a different place of work;

• modifying procedures for testing or assessment of the employee;

• modifying instructions or reference manuals with which the employee is required to comply;

• acquiring or modifying equipment for the use of the employee;

• making adjustments to premises to be used by the employee;

• training the employee or arranging for the employee to be trained;

• providing a reader or interpreter to the employee; and

• providing supervision for the employee.

It is equally important to know that employers are not required to make an accommodation that would create undue hardship on the company – such as an undue financial burden. This not only refers to direct expenses which may have to be incurred but also to the reduced levels of actual production rates and output.

Hardship may also refer to the impact the adjustments to accommodate that one person would have on other employees who take on the functions of the disabled person.

If it reaches the point where, despite all of the reasonable accommodations, the employee cannot perform the essential functions of their job, then the employer may not be required to keep them employed.

In the same way that workplace policies need the accompanying procedures to give the policy full effect, the legislation currently in place could benefit from the accompanying guidelines to ensure the intended protection is provided.

However, coming out of this, you may wish to have your own workplace policy developed to provide the clarity and transparency your managers and employees (especially your disabled employee) may need.

Clear, transparent guidelines can go a long way in ensuring that employees are left in no doubt that they are in fact being treated fairly, humanely and in a manner that is not discriminatory.

The HR practitioner must be careful to balance the specific case before them as well as the ultimate impact the situation is having on the morale of the other team members.

About Lifeline Labour Solutions: Lifeline Labour Solutions is a boutique partnership providing people management solutions to workplace challenges Partners Carol-Ann Jordan and Jacqueline Belgrave are established practitioners with a wealth of knowledge and experience in Employment Relations, Labour Relations and Human Resource Management between them. Email: info@ lifelinelabour.com;
Tel: 1(246)247-5213