Thrive Law gives us some insight
This is a topic that often becomes litigious as many employers get it wrong, either because they simply don’t make adjustments, or they don’t know what to do. Alternatively, employers make a decision not to make adjustments because they don’t think the duty is applicable or worse, they simply don’t know of their legal obligation to do so.
Where does the duty to make reasonable adjustments come from?
Employers are required to put reasonable adjustments in place where they know that an applicant, employee, worker, volunteer or intern has a disability and because of this, is placed at a substantial disadvantage at work. This occurs at the point of knowing of the impact of the disability on the individual, which could be as early as a job interview.
This duty is set out at section 20 and Schedule 9 of the Equality Act 2010 (“EqA”) and essentially requires the company to adjust something in the workplace to assist in alleviating the substantial disadvantage faced by the disabled person in their role.
TIP – there is no legal requirement for the individual to disclose a disability or for a formal diagnosis for the duty to arise.
When does the duty arise?
A company will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage in the workplace. A company may know about a disability even where an individual has not specifically disclosed one. For example, if a staff member is in a wheelchair, or has a panic attack at work which their manager sees and supports them with.
The duty to make reasonable adjustments to reduce or remove an individual’s disadvantage can arise where the individual is placed at a substantial disadvantage (in comparison with those who are not disabled) by:
1. The company’s provision criterion or practice [“PCP”].
The EHRC – Employment Statutory Code of Practice (the EHRC Code) provides an example whereby an employer has a policy that designated car parking spaces are only offered to senior managers. If a junior staff member has a mobility impairment and therefore, needs to park close to the office, it is likely to be a reasonable adjustment to the car parking policy to give that individual a designated parking space.
The PCP will usually apply equally to everyone but place the disabled person at a substantial disadvantage and therefore, the adjustment to that policy should alleviate that disadvantage.
2. A physical feature of the workplace.
The EHRC Code provides that physical features could include any of the following: “steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture and temporary or movable items”.
For example, a requirement to go upstairs to get to the office is a substantial disadvantage if an individual is in a wheelchair. In these circumstances, a reasonable adjustment would be putting in a ramp or asking them to work on a ground floor instead of having to work on a floor with stair access.
3. The company’s failure to provide an auxiliary aid.
The EHRC code provides the example of a blind secretary who is employed by a temping agency which supplies her to other organisations for secretarial work. Her ability to access standard computer equipment places her at a substantial disadvantage at the offices of all or most of the principals to whom she might be supplied. The agency provides her with an adapted portable computer and Braille keyboard, by way of reasonable adjustments.
What is a disability?
An individual is disabled under the EqA if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. An impairment will be ‘substantial’ where the impact is more than minor or trivial. This does not need to only affect an individual at work, we are looking at the effect on their daily activities, such as walking or driving, sleeping, getting dressed, cooking or eating, being able to concentrate or socialise. ‘Long term’ means the impairment has lasted, or is likely to last, for 12 months or more. Some impairments automatically meet the definition from the point of diagnosis. These are cancer, HIV and Multiple Sclerosis. An individual is also regarded as automatically disabled if registered as blind or partially sighted.
Where a dispute arises, it is for an Employment Tribunal to decide whether an individual’s impairment meets the definition. It is however worth noting this is a different threshold than a medical or ‘blue badge’ definition of a disability, and in an employment sense a disability does not need to be a formally diagnosed condition. The legal definition is subjective; two individuals could have the same condition but only one might meet the definition if it affects them more substantially or lasts for longer.
Where the effect of an impairment is reduced, or controlled, by medication or treatment (such as a prosthesis or hearing aid), the Tribunal will consider the impact of the disability as it would be without such medication or treatment.
If the employer is unsure whether an employee meets the definition, supporting them anyway is safe practice. The employer should not need to wait for them to request reasonable adjustments, or for medical advice, such as Occupational Health – it is in everyone’s interests for the individual to be supported in the workplace and adjustments made that would be considered reasonable and will assist them in their role.
Types of adjustments
Where an employee is suffering from a physical impairment it is usually more straightforward when identifying reasonable adjustments. If someone has problems accessing an office which is up a flight of stairs because they are in a wheelchair, it is obvious that a wheelchair accessible ramp will remove the disadvantage to that individual. Likewise, it may be appropriate to widen doorways or create more space around desks if you have an employee in a wheelchair.
Where an employee is visually impaired, providing information in more accessible formats, such as braille, large print, or audio, could be considered. Adjustments might also include removing something from the workplace, such as a bright light above an employee’s workstation, or providing something, such as a screen, to reduce the noise and distractions in a busy office environment.
It is often much harder to identify adjustments where someone is suffering from a mental impairment as this cannot be physically seen and therefore, what would minimise the disadvantage is not clear. Employers must have open and honest conversations with their employee to establish what would assist them. Allowing an employee to work flexibly, for example, or implementing a phased return to work following a period of absence may be a reasonable adjustment depending on the circumstances. Other examples might include providing a quiet space to work, providing headphones, or allowing someone to work from home (if they are suffering from anxiety that is linked to travel or punctuality). Where employees have neurological impairments (such as Autism and ADHD), training or mentoring, providing a work coach or modifying equipment and processes could assist that individual. The environment should also be considered, as often they can experience sensory overloads. Employers should think, can they adjust the lighting, noise and heating in the workplace if not is there a room where the individual can work? If not, how else could the workspace be adapted or could they work better from home?
Reasonable adjustments could also include adjusting internal policies, for example, discounting absences related to a disability for absence management or allowing an employee to be accompanied by a family member at a disciplinary or grievance hearing for support. Many companies are rigid in their policies and respond stating it cannot be done when they have a legal obligation to make reasonable adjustments.
The EHRC Code contains a non-exhaustive list of potential adjustments that employers might be required to make.
TIP – A paper trail of all discussions around adjustments should be kept, especially where they are rejected so if this is ever challenged, the employer can show why the request was rejected.
- An employee suffers from ADHD and anxiety. They start work without clear targets and criteria, as the Employer’s policy is to ‘set your targets’. Reasonable adjustments would have been to provide the employee with targets in writing and agree on these with them, due to their disability.
- An employee suffers from borderline personality disorder (BPD). They are particularly unwell and ask that all contact is made through their mental health team whilst they are on sick leave. Their manager calls the employee directly. The employee alleges a failure to make reasonable adjustments.
All adjustments must be considered on an individual basis. What might be considered a reasonable adjustment for one person with a disability may not be the same for someone else with the same disability, as they often manifest differently. Employers are advised not to make assumptions on what they think will be a reasonable adjustment but to ask the individual and involved experts if they are not sure.
The duty to make reasonable adjustments also applies to applicants during the recruitment process. Candidates should be asked if they will require reasonable adjustments under the EqA to complete the interview process.
For example, many neurodiverse individuals often struggle with traditional interviews. Using tests and tasks to complete from home or work trials can all be better ways to assess these candidates.
Other potential adjustments that could be made to a recruitment process, include providing interview questions in advance, offering more time during assessments, ensuring the environment takes account of sensory needs, or the use of assistive technology for an interview.
Assessing the reasonableness of adjustments is fact sensitive. There is no duty to take measures that would impose a ‘disproportionate burden on the employer’.
Ultimately, the needs of the individual and of the business must be balanced. If something is going to cost the business a lot of money (like installing an expensive lift as a ramp wouldn’t work on the stairway) then this can be a factor to consider but should not be the only determinative factor. Thought should be given to the extent to which the step would disrupt the employer’s activities, as well as the resources available to the employer. Larger employers may be expected to make adjustments that are not strictly speaking cost effective, given their resources. If the employer is going to refuse a request for reasonable adjustments, then this must be objectively justified.
Practically speaking, even where it doesn’t seem that someone meets the definition of disability, if refusing a proposed adjustment due to the potential cost would mean losing a valued member of staff, then it may make business sense to invest to keep them.
Employers should not assume what could constitute a reasonable adjustment. They should ask the individual or involve their GP or an Occupational Health provider to obtain medical advice and then speak to an employment lawyer to help you determine this legal question.
Whilst an individual’s GP can provide advice in respect of their impairment, they are not always best placed to provide recommendations in respect of potential reasonable adjustments in the workplace. This is where Occupational Health comes in, as work-place focussed advice in line with an individual’s impairment, can be provided. To get the most out of any Occupational Health service, employers need to ensure they ask relevant questions when they make the referral. It is also helpful to instruct an Occupational Health provider who specialises in the individual’s impairment (especially in cases of a mental, physical impairment and neurological conditions) so they can apply their knowledge and experience in the assessment and subsequent report.
Risk of failing to make reasonable adjustments
If an employer unreasonably refuses to put adjustments in place for a disabled individual, they risk facing disability discrimination claims. The compensation in such claims is an ‘injury to feelings’ award, which is uncapped. Also where a dismissal is seen to be discriminatory the individual may be able to claim loss of earnings too – meaning the sky’s the limit when it comes to compensation. This can therefore be extremely costly for the business, not to mention the reputational damage a discrimination claim going through the Tribunal can have.
There is also the risk of unfair dismissal claims (if a person is dismissed) or constructive unfair dismissal claims (if someone resigns as a direct response to the Company fundamentally breaching their terms and conditions of employment, and this could include refusing to make a reasonable adjustment).
Practical Advice for Employers
It is in everyone’s benefit to act pragmatically and preventatively when it comes to considering reasonable adjustments, and to address issues head on when they arise. If an employer becomes aware that an employee is suffering from an impairment then consideration is required on whether they need adjustments, and what the employer, manager, or colleague, can do to support that individual with their physical or mental impairment.
Supporting staff assists in retaining skilled and valued employees and helps to prevent issues with long term sickness absence. This is beneficial to the individual and the business.