Sir Charlie Mayfield, a stalwart of the UK business community and advisor to Liz Kendall, Work and Pensions Secretary, has recently been quoted in The Times stating that employers have a ‘rational’ fear of hiring disabled staff. During his review of workplace sickness, Mayfield concluded that adapting work to staff with health problems was a huge issue that required employers to change, but suggested extra duties on businesses were not the answer. He said:
“We’ve got a large amount of legislation which places requirements on employers and it’s partly because of that that a lot of employers see it as risky to employ disabled people. And so quite rationally, they don’t, even though we all know that’s not the right outcome.”
The context for these comments is one in which 2.5 million UK workers are permanently off sick, and 8.7 million workers identifying as disabled. There’s been an increase of 800,000 people too unwell to work since 2019, which is unsustainable for workers, their life outcomes and financial stability as well as the national economy.
Rights Versus Reality?
So are Mayfield’s comments and his discovery report for the Department of Work and Pensions yet another stick with which to beat disabled people? Or are his remarks click bait headlines, papering over some well reasoned insights which need to be surfaced, understood and addressed? Mayfield commented on the rise in Employment Tribunals and the extra duties on UK businesses:
The present approach “pitches rights against reality. If someone’s ill and they have a fit note, there’s a stand-off almost between that person and their employer, who could be part of the solution. We need to move from a position where too much of this is about risk and fear, to one where we humanise this and encourage people to be talking of finding solutions.”
The adversarial narratives that exist between communities of lived experience and employers has swiftly deepened in recent years, with each group finding very different sources of advice online and increases in perceptions of conflict and unfairness from all sides – employee, colleague and employer.
However, read deeper into the report, and Mayfield is recommending an incentivisation approach to disability employment (the proverbial “carrot”, rather than the legislative “stick”). Crucially, he recommends that employers intervene early when someone is struggling, rather than lagging in the provision of adjustments or support. Indeed, failure to provide timely intervention is a frequent cause of employment tribunals, with compensation up to £230,000 in one recent case. A shift in responsiveness would be very welcome by the disabled and neurodivergent community and it seems pretty logical. Government support and incentives for early intervention seem rational, but we will need to think carefully about what to provide.
Early Intervention Guidance
Advice on disability adjustments for individuals from the government service Access to Work, in-house / private Occupational Health or specialist providers is routinely a first port of call for employees and employers respectively. Access to Work has been a lifeline for employees over the past few decades, and has funded services and equipment that exceeds the budgets of many small businesses. However, it has become so log jammed that there is a community pressure group now set up to raise awareness of the problem founded by Dr Shani Dhanda. and Jacqueline Winstanley FRSA.
Occupational health services can be excellent and provide or signpost the specialist advice needed. But costs have spiralled with a clinical, “assessment first” provision when there are so many referrals. There’s a lack of filtering so those with the greatest needs are getting the same level of intervention as those who need a simple set of strategies or some software. Some of the occupational health companies are delivering the same services that they recommend, which is a structural conflict of interest and risks driving up costs – this practice is banned in Access to Work and Disabled Students Allowance, for example.
Specialist providers, for example the ergonomic equipment retailers, assistive technology and cognitive / emotional skills coaches can be a lifeline. However, this market is awash with self-professed expertise and lack of regulation and governance. It’s very hard to know how to commission reliable intervention advice and professional services for complex cases with no quality benchmarking. There’s usually a lack of longitudinal evaluation showing the impact of provision, so the business case analysis is tricky and relies on associated variables like turnover or engagement, rather than productivity or performance.
Easy To Say, Hard To Do
So while we’re telling employers to do more, faster, we will also need to be clear about the “how” and the “what”. With grand policy gestures and an increasingly litigious atmosphere, the needs of the businesses risk being overlooked and on that note, Sir Mayfield’s comments are on point. Advice on adjustments for health and disability needs to be a collaboration between employer and employee. An assessment should consult both parties, and review what the individual needs in relation to the resources available. For example, a higher cost burden might be acceptable for a larger business than a small business. Safety critical roles might not have as much flexibility as a standard role. It is therefore not possible to list reasonable adjustments for each physical, emotional or cognitive difficulty. These can act as guidance, but not definitive entitlements. The policy and specialist support environment is going to need to become more sophisticated, and more responsive to balancing needs and addressing conflict, unfairness and unreasonable requests / restrictions. This is not a straightforward ask.
Needs-led models
How can employers find good advice in a complex and risky environment? The needs-led model is a good alternative to the medical model, relying more on practical support than clinical diagnosis. At work, we don’t need to know the cause of back pain to know that a first port of call is a desk assessment or moving and handling review. Improving knowledge of functional, everyday difficulties and potential scaffolding is within the grasp of HR with the occasional advice of specialists where needed. Up-skilling employer confidence and competence is a potential avenue to improving outcomes, particularly in the areas of emotional regulation and cognition-dependent task performance where the challenges and the solutions are not visible.
Knowing what to provide can be a pragmatic, low-cost conversation – research indicates that the cheapest or free adjustments are typically the most welcome, and that employees prefer the ability to personalize rather than passively receive an off-the-shelf allocation.
As the population ages, the disability inclusion problem is not going to go away and it is not going to be limited to the UK. Employers who are not developing a straightforward and accessible pathway to inclusion – at the company and individual level – will remain at risk of employment tribunal losses. This isn’t a question of rights versus reality, it is a question of taking charge of a business need versus sticking your head in the sand. The rational fear of tribunals can be replaced by a rational approach to managing a large and growing cohort of disabled employees. Now is a great time to start a strategic workforce plan.