Dementia is often thought of as something that affects people who have retired, but with the state pension age rising and the default retirement age a thing of the past, people will increasingly experience the first symptoms of dementia while at work. Employers therefore need to consider how they can make their workplaces more dementia-friendly and the legal duties that arise when an employee has dementia.

Dementia and legal issues
The Equality Act 2010 makes it unlawful to discriminate against an employee on the basis of them having a disability. A disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities.

Dementia will often fit the disability definition. Because it is a progressive condition, the law treats it as having a substantial adverse effect as soon as it has some impact on a person’s ability to carry out normal day-to-day activities.

Protection from discrimination applies to agency workers and casual / zero hours workers, as well as employees. Where an employee is discriminatory towards a colleague, the employer can be liable.

Disability discrimination
Disability discrimination has many strands to it. A common one is the duty to make reasonable adjustments. This duty arises where a disabled employee is put at a disadvantage in the workplace. If so, the employer must make such adjustments as are reasonable to help the employee overcome that disadvantage.

What is ‘reasonable’ will depend on many things, including:

• the size and resources of the organisation;
• how practical and effective the adjustments would be;
• the cost – but any costs incurred cannot be passed to the employee; and
• the impact on other members of staff.

Employers can, and usually should, seek advice about adjustments, for example from an occupational health assessor.

An employer may need to make changes to how things are done at work, for example:

• Adapting policies and procedures, such as by reallocating a task to another employee or changing working hours;
• Physical changes to the workplace may be necessary, for example moving the person’s desk to a quieter area; and
• Providing extra aids or support.

The duty to make reasonable adjustment only kicks in where the employer knows, or ought to know, that the employee is disabled. This places a duty on employers to do all they can reasonably be expected to do to find out if an employee has a disability. This feeds into creating the right environment for employees to be open about dementia.

Other forms of disability discrimination include discrimination arising from a disability. For example, penalising an employee for poor performance where this arises as a result of dementia symptoms could be unlawful. There is a defence for employers that the action taken was proportionate and in pursuit of a legitimate aim, but this defence will not succeed if the employer gave no consideration to the fact that the employee’s symptoms arose from a disability.

Access to Work
Access to Work is a scheme that offers assistance to disabled people who are in paid employment. An Access to Work grant can pay for special equipment and adaptations. Further details can be found here. The application has to come from the employee.

Making your workplace dementia-friendly
This concerns helping employees with dementia but also creating an environment in which colleagues understand dementia, and myths and stigma are dispelled. Employers should send a clear message that anyone with a problem related to dementia will be treated with compassion.

The physical environment can make a big difference for someone with dementia. Features such as good lighting, clear signage and better acoustics can help employees as well as visitors and, for public-facing services, customers.

The Alzheimer’s Society recommends running awareness-raising activities in the workplace, such as working with local Dementia Friends Champions to deliver Dementia Friends sessions during lunchbreaks. It is also a good idea to include dementia-related information on staff notice boards, in newsletters and in reading areas.

Employees who are caring for someone who has dementia will need flexibility and support as they balance their caring responsibilities with their jobs.

By making managers aware of dementia and how it might affect their staff, they should be able to provide the right support to an employee at an early stage and avoid putting the organisation at risk of disability discrimination claims.

Ben Stepney is a Senior Associate, Employment, at law firm Thomson Snell and Passmore
https://www.ts-p.co.uk/news/dementia-in-the-workplace-considerations-for-employers