When an employee needs help there is an expectation that they will ask for it…after all how can an employer be expected to know they are struggling without being informed.
But when a worker with a disability needs reasonable adjustments to be made, an employer is expected to proactive in doing so, as a failure to do it can have very serious repercussions.
An organisation is required to make adjustments where it is aware – or should reasonably be aware – that an employee has a disability.
A failure to do so can lead to a claim for disability discrimination, and in cases that have been badly handled it can include aggravated damages which can increase any compensation award in the event of a successful claim (1).
The finding in the case of Harris v Monmouthshire County Council should serve as a stark warning to all employers of the costly consequences of failing to make reasonable adjustments.
The claimant, a senior education welfare officer, was awarded £238,216 for unfair dismissal and discrimination arising from disability. The award was made following an employment tribunal finding that the council mishandled her ill-health dismissal
An employer should be fully aware of its duty to make reasonable adjustments, which aims to ensure an employee with a disability, as far as is reasonable, has exactly the same access to everything required to do a job as their colleagues.
The Equality and Human Rights Commission does state: When the duty arises, your employer is under a positive and proactive duty to take steps to remove or reduce or prevent the obstacles you face as a disabled worker or job applicant.(2)
When considering adjustments it is essential that an employer fully understands the problems faced by a worker in order for it to make informed decisions. Meeting with the employee will allow an open discussion to take place, relevant information to be gathered and also provide some reassurance to the individual.
Deciding on what adjustments are required will depend on many factors, and the individual circumstances of each case. An employer is required to carefully consider what provision, criteria or practice is causing the disadvantage as this will identify and determine any adjustment that needs to be made (3).
ACAS advise the three main questions an employer should consider when assessing what reasonable adjustment might be needed, are (4):
Does it need to change to how things are done?
Does it need to physically change to the workplace?
Does it need to provide extra equipment or get someone to assist the disabled worker in some way?
Employers are not required to change the basic nature of the job, but where there is a reasonable adjustment cost, it is responsible for paying. For example if a worker needs a specialist chair the employer must pay not the worker.
Where there may be a cost associated with adjustments support may be available in the form of the Access to Work scheme (5). The government-backed programme provides money to cover the extra costs disabled people face when working - such as hiring support workers, buying specialised equipment and travel expenses. Support can be provided where someone needs help or adaptations beyond reasonable adjustments.
Although an employer is under a legal duty to make reasonable adjustments there will be cases when changes can be considered unreasonable, therefore it can be justified and lawful to refuse to make them. Whether an adjustment is reasonable will depend on an assessment of factors including:
Is it reasonable to make?
Does the employer have the resources to pay for it?
Will it help to overcome or reduce the disadvantage faced in the workplace?
Will it have an unfavourable impact on the health and safety of others?
1. Employment tribunals - discrimination - calculating compensation for aggravated damages [Internet]. [cited 2018 Apr 22]. Available from: http://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/employment-tribunals-valuing-a-claim/compensation-for-discrimination/employment-tribunals-discrimination-calculating-compensation-for-aggravated-damages/
2. In employment: Workplace adjustments | Equality and Human Rights Commission [Internet]. [cited 2018 Apr 22]. Available from: https://www.equalityhumanrights.com/en/multipage-guide/employment-workplace-adjustments
3. Participation E. Equality Act 2010 [Internet]. [cited 2018 Apr 22]. Available from: https://www.legislation.gov.uk/ukpga/2010/15/section/19
4. Reasonable adjustments in the workplace | Advice and guidance [Internet]. 2017 [cited 2018 Apr 22]. Available from: http://www.acas.org.uk/index.aspx?articleid=6074
5. Access to Work factsheet for employers [Internet]. GOV.UK. [cited 2018 Apr 22]. Available from: https://www.gov.uk/government/publications/access-to-work-guide-for-employers/access-to-work-factsheet-for-employers