Understanding an employer’s duty to remove barriers for an employee with a disability

Employers are under a duty to make reasonable adjustments for an employee with a disability, but how much is actually known about what that really means?

Reasonable adjustments are changes to the work environment that allow employees with a disability to work safely and productively.

Employers must make reasonable adjustments to ensure staff with disabilities, or physical or mental health conditions, are not substantially disadvantaged when doing their jobs
(1) It applies to all workers, including trainees, apprentices and contract workers.

The Equality Act 2010 provides a legal framework that protects the rights of employees and it advances equality of opportunity for all. The legislation does guard individuals from unfair treatment and promotes a fair and more equal society (2).

The Act makes it unlawful for an employer to treat an employee unfairly on the grounds of disability or other protected characteristics, which include age, race, sex, etc.

When the duty arises an employer cannot justify a failure to make a reasonable adjustment. The main issue will always be whether or not the adjustment is ‘reasonable’ and practicable for an employer.

Failing to make reasonable adjustments is one of the most common forms of disability discrimination.

It is reported that Ministry of Justice figures show that cases alleging disability discrimination — which covers physical or mental health — jumped 26 per cent to 6,919 in the 12 months to April 2019 compared with 5,477 for the previous year. A further 3,657 cases were filed in the six months to September 2019(3).

The question of what exactly is considered a reasonable adjustment will depend on what is practicable given the size and resources of the employer, and the answer is one that a court will ultimately determine.

The duty to make reasonable adjustments comprises the following three requirements. (4)

• The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

• The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

• The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

The challenge for employers is often identifying what is a reasonable adjustment? Many can be simple and straightforward, for example: a special chair for an employee with a back condition, a ramp for a wheelchair user, modifying sickness absence triggers or flexible working.

In assessing a request for reasonable adjustments there are three key things an employer must consider:

• Do I need to change how things are done - for example, any work practices or policies?
• Do I need to physically change the workplace?
• Do I need to provide extra equipment or get someone to assist the disabled worker or job applicant in some way?

Access to Work is a publicly funded employment support programme that provides help and guidance to employers and aims to help more disabled people start or stay in work (5). It can provide practical and financial support for people who have a disability or long term physical or mental health condition.

Any request for a reasonable adjustment should be handled in a sensitive manner and the effect on the employee’s disability carefully considered.

References: 

(1) Adjustments for disabled workers - [Internet] www.gov.uk [Cited 20.01.2020] https://www.gov.uk/reasonable-adjustments-for-disabled-workers.

(2) Human Rights - [Internet] www.equalityhumanrights.com [Cited 20.01.2020] https://www.equalityhumanrights.com/en/equality-act-2010/what-equality-act

(3) Figures for Ministry of Justice - [Internet] www.ft.com [Cited 20.01.2020] https://www.ft.com/content/a6b915a6-338d-11ea-a329-0bcf87a328f2

(4) duty to make reasonable adjustments comprises the following three requirements - [Internet] www.legislation.gov.uk [Cited 20.01.2020] http://www.legislation.gov.uk/ukpga/2010/15/section/20

(5) Access to Work - [Internet] www.gov.uk [Cited 20.01.2020] https://www.gov.uk/government/publications/access-to-work-guide-for-employers/access-to-work-factsheet-for-employers

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