The legal duty on employers to make reasonable adjustments is a regular source of litigation. In this article we remind employers of some of the main points to remember in this area.
Under the Equality Act 2010 (the Act) employers have a duty to make reasonable adjustments for employees and job applicants. Failure to make a reasonable adjustment is disability discrimination for which an employment tribunal may award unlimited compensation.
The duty to make reasonable adjustments is a rare example of positive discrimination; an employer may need to take positive action to assist an individual to overcome their particular disadvantage in the workplace rather than simply treating them equally to other non-disabled individuals.
Duty only triggered in certain circumstances
However, this duty is only triggered where the employee or job applicant is disabled within the meaning of the Act and they suffer a substantial disadvantage as a result of a provision, criterion or practice of the employer.
The duty can also arise where the individual is put at a substantial disadvantage by a physical feature (of the workplace environment) or by not being provided with an auxiliary aid.
Definition of disability
"Disability" has a specific meaning under the Act. A person had a disability if they have a "physical or mental impairment" which "has a substantial and long-term effect" on their ability to "carry out normal day-to-day" activities.
Long-term means the impairment has lasted at least 12 months, or is likely to last at least 12 months, or for the rest of the life of the person affected.
What does "reasonable" mean?
It is important for employers to identify the substantial disadvantage that the individual suffers as a result of their disability in order to access whether a particular adjustment might be reasonable in overcoming that disadvantage.
What is a "reasonable" adjustment will depend upon all the circumstances of the case and employment tribunals will judge this on an objective basis. The following factors are likely to be relevant for an employment tribunal in considering the question of whether a particular adjustment is reasonable for an employer to make:
- the effectiveness of the adjustment in overcoming the disadvantage
- the practicality of the adjustment
- the financial costs of the adjustment
- the disruption to the employer, its business and other employees which implementing the adjustment may cause
- the type and size of the employer
- the employer's financial or other resources
- the availability of third party assistance to help make the adjustment (e.g. through the Access to Work scheme)
It should be remembered that the overriding purpose of the legal duty to make reasonable adjustments is to enable disabled individuals to participate in the workplace. It would not therefore be reasonable for an employee to insist on adjustments which do not support this objective, for example to enable their employment to terminate on more favourable terms, or to take a voluntary career break from their job.
Finally, where an employer does not know, and could not reasonably be expected to know that an individual is disabled and is likely to be placed at a substantial disadvantage, the duty to make reasonable adjustments will not apply. This does not mean however that it is a good idea for employers to "bury their head in the sand" over whether or not someone is disabled! Best practice would be for employers to seek to accommodate requests for reasonable adjustments regardless of whether they know for sure that an individual is disabled.
The extent of the duty to make reasonable adjustments is commonly misunderstood by both employers and individuals. This area is a significant source of employment tribunal claims and cases and demonstrates that the law relating to reasonable adjustments is complex. If in doubt about their obligations employers should seek legal advice at the earliest opportunity, getting it wrong could be very costly.