Mon 11 May, 2020
When seeking clarification on any matter you inevitWhen seeking clarification on any matter you inevitably want a definitive answer, so if asking what is a reasonable adjustment, you expect one, right?
The problem for employers is that there is no clear answer about what constitutes a reasonable adjustment for an employee with a disability.
The test of what is deemed reasonable is an objective one and not simply a matter of what you may personally think is reasonable.
Employers must make reasonable adjustments to make sure all workers with disabilities, or physical or mental health conditions, are not substantially disadvantaged when doing their jobs (1).
Ultimately, it is for an Employment Tribunal to decide, in the event of a claim of alleged unlawful disability discrimination, what adjustment should have been made for a particular employee, and to find if an employer acted reasonably.
In the case of a NHS employee the Employment Appeals Tribunal found that it was not a reasonable adjustment for an employer to have to offer a disabled employee who was on long term sick leave a career break or require the employer to put forward a proposal for rehabilitative non-productive work for the employee to put to her GP (2).
There is no established, clear and agreed list detailing the reasonable adjustments that an employer is expected to make. Each case should be considered individually and fairly.
Some examples of reasonable adjustments that an employer can make include:
· Purchasing specialist equipment, such as an ergonomic chair
· Allowing different start and end times to the working day.
· Providing recruitment literature in large print
· Removing something from the workplace, for example bright lights above the employee’s workstation
· Providing something in the workplace, for example an accessible car parking space
· Discounting disability-related sickness leave for the purposes of absence management.
An employer is only required to make adjustments that are reasonable in all the circumstances.
If there is a very cheap solution that would completely get rid of a substantial disadvantage faced by a disabled employee, it would be unreasonable not to make it (3)
So, if for example an employee has no arms and there is a provision that means all employees have to type it obviously puts that individual with no arms at a substantial disadvantage.
If there is dictation software that can be purchased for £30 that would completely remove that disadvantage, then it would probably be unreasonable not to buy that software.
Factors such as the cost and practicability of making an adjustment, how effective the adjustment will be, the size and resources of the employer and the availability of financial support may be considered in deciding what is reasonable.
Failing to make reasonable adjustments is one of the most common types of disability discrimination.
An employer’s failure to make reasonable adjustments, even if it is not intentional, can be considered direct and or indirect discrimination.
Direct discrimination is when someone is treated unfairly because of their disability (4) Indirect discrimination can happen when there are rules or arrangements that apply to a group of employees or job applicants, but in practice are less fair to an individual who has a disability.
Where an employer fails to make a reasonable adjustment when it is under a duty to do so, the Equality Act 2010 treats that as discrimination.
In the event that an employee makes a successful claim to an Employment Tribunal for disability discrimination an employer could become liable to pay substantial damages.
We reported recently how a bank worker was awarded £4.7m for disability discrimination in a case that included the employer’s failure to make reasonable adjustments (5).
Access to Work is a publicly funded employment support programme that aims to help more disabled people start or stay in work. In some cases it can carry out workplace assessments and pay for special equipment, adaptations and support for a worker with a disability.
1) Reasonable adjustments (Internet) www.gov.uk https://www.gov.uk/reasonable-adjustments-for-disabled-workers (cited 11.5.20)
2) Employment appeal tribunal (internet) www.bailii.org https://www.bailii.org/uk/cases/UKEAT/2011/0507_10_2608.html (cited 11.5.20)
3) Reasonable adjustments (internet) www.castleassociates.org.uk https://castleassociates.org.uk/ask-the-expert/watch/when-reasonable-adjustment-unreasonable-ask-expert (cited 11.5.20)
4) Direct and indirect discrimination (internet) www.acas.org.uk https://www.acas.org.uk/discrimination-and-the-law/direct-and-indirect-discrimination (cited 11.5.20)
5) £4 million awarded to bank worker (internet) www.peoplmanagement.co.uk https://www.peoplemanagement.co.uk/news/articles/tribunal-awards-record-4m-to-bank-worker-bullied-over-disability (cited 11.5.20)ably want a definitive answer, so if asking what is a reasonable adjustment, you expect one, right?