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Employers have a duty to make reasonable adjustments for disabled job applicants, employees and previous employees under the Equality Act 2010.
The duty to make reasonable adjustments aims to ensure that a disabled person can use an organisation’s services as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
Definition of disability – who is protected?
The act defines a “disabled person” as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This definition raises four key questions:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial? Substantial is defined as more than minor or trivial.
- Is that effect long-term? Long-term here means that the condition has lasted at least 12 months or is likely to last longer than 12 months.
A person will automatically meet the definition of disability if they are diagnosed with HIV infection, cancer, multiple sclerosis, certified as blind, severely sight impaired, sight impaired or partially sighted.
This means that they are treated as having a disability, even if they do not satisfy the tests set out above.
Duty to make reasonable adjustments
The duty to make reasonable adjustments requires employers to take positive action to remove certain disadvantages where:
- a “provision, criterion or practice” of the business places a disabled person at a substantial disadvantage. A provision, criterion or practice includes any formal or informal policies, rules, practices, arrangements or qualifications
- a physical feature places a disabled person at a substantial disadvantage
- a disabled person would be at a substantial disadvantage without the provision of an auxiliary aid
When the duty arises, an employer may be required to change the way in which employment is structured, remove physical barriers and/or provide extra support for disabled workers.
In many situations, an employer must treat the disabled worker or job applicant more favourably than others as part of the reasonable adjustment.
The duty to make reasonable adjustments arises where an employer knows or should reasonably know that an employee is disabled and that they are likely to be placed at a substantial disadvantage because of their disability. It applies to all stages and aspects of employment, including recruitment, disciplinary or dismissal procedures.
Examples of reasonable adjustments
Examples of steps it might be reasonable for employers to take include:
- making adjustments to premises (for example, structural or physical changes such as widening a doorway, providing a ramp, or relocating light switches, door handles or shelves)
- allocating some of the disabled person’s duties to another person l transferring the disabled person to fill an existing vacancy (for example, considering whether a suitable alternative post is available for a worker who becomes disabled, or whose disability worsens, where reasonable adjustments are not possible)
- altering the worker’s hours of working or training l assigning the worker to a different place of work or training (for example, relocating the work station of a newly disabled worker from an inaccessible third floor office to an accessible one on the ground floor)
- allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment
- giving, or arranging for, training or mentoring (for example, providing different or longer training in the use of particular machine for a worker with restricted hand movements)
- acquiring or modifying equipment (such as an adapted keyboard for someone with arthritis)
- providing a reader or interpreter to visually impaired workers
- providing supervision or support from a colleague
- adjusting redundancy selection criteria or modifying performance-related pay arrangements
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Factors to be taken into account in deciding what is reasonable Various factors influence whether a particular adjustment is considered reasonable. When deciding this, an employer can consider the following:
- how effective the change will be in avoiding the disadvantage the disabled worker would otherwise experience
- its practicality
- the cost
- the organisation’s resources and size
- the availability of financial support
An employer is only required to make adjustments that are reasonable. The more straightforward an adjustment is, the more likely it is to be reasonable. If an adjustment costs little or nothing and is not disruptive, it would be reasonable unless some other factor (such as impracticality or lack of effectiveness) made it unreasonable.
However, just because an adjustment is difficult doesn’t mean it can’t also be reasonable. The financial implications of providing the adjustment will need to be weighed in the balance. Large employers might well, given their resources, be expected to make adjustments that are not necessarily cost effective.
Consequences of failure to make reasonable adjustments
Discrimination claims and/or compensation
Employees and job candidates can bring a disability discrimination claim in the employment tribunal on the grounds that the employer failed to make reasonable adjustments.
There is no length of service requirement to bring this type of claim and there is also no cap on the level of compensation that can be awarded, so disability discrimination claims can prove to be a significant cost to employers.
Apart from potentially being lengthy, expensive and stressful, defending an employment tribunal claim can have a damaging impact on the reputation of an employer. Tribunal decisions are published on the Gov.uk website and are easily accessible to the public.
Even if a claim was handled well by an employer, it can be damaging to have the employer's name associated with litigation. Further, tribunal proceedings might deter potential employees from joining the organisation or even encourage other employees to bring claims.