The obligation to make reasonable adjustments for a disabled employee is one which many employers grapple with on a regular basis. However, the obligation depends on an employer having knowledge of the disability. We consider what this means in practice.
The duty to make reasonable adjustments arises when there is a provision, criterion or practice (PCP) applied by the employer which puts a disabled person at a substantial disadvantage in comparison to those who are not disabled. In these circumstances, the employer must take such steps as it is reasonable to take to avoid the disadvantage.
What knowledge is required?
For the obligation to make reasonable adjustments to be triggered an employer must:
- know, actually or constructively, that the employee is disabled and
- know that the employee is likely to be put at a substantial disadvantage because of that disability.
The case of Wilcox v Birmingham CAB Services Ltd confirms that the second element of this test will not be bought into play unless the employer knows the employee is disabled.
When does the employer have knowledge?
Clearly if an employer is notified that an employee is disabled and that they experience a disadvantage in the workplace, then the duty to make reasonable adjustments is triggered. Common examples of this are where the employee advises that they are disabled at the outset of employment and/or where Occupational Health advises that the employee is disabled for the purposes of the Equality Act 2010.
Where the employer does not have actual knowledge, it will not be able to avoid the duty to make reasonable adjustments unless it could not reasonably be expected to know that the employee is disabled, or that the employee was placed at a substantial disadvantage. The employer cannot therefore simply bury its head in the sand or turn a blind eye to ongoing issues with a view to subsequently arguing that they had no knowledge of the employee's condition or any disadvantage resulting from it.
Can an employer simply avoid asking the question?
The Equality and Human Rights Commission (EHRC) Code advises that employers must do all they can reasonably be expected to do to find out this information (i.e. whether an employee is disabled). Accordingly, employers should take reasonable steps and have systems in place to ensure that this information can be obtained. There are numerous cases which support the view that an employer will have reasonable knowledge when a full consideration of the factual background has been carried out. A recent case dealing with this exact point is Gallop v Newport City Council where the Court of Appeal held that the employer was wrong to have unthinkingly followed an occupational health adviser's opinion that suggested an employee was not disabled. The Court took the view that whilst medical evidence is helpful it was ultimately for the employer to satisfy itself whether or not the employee was disabled.
What should employers be doing?
It is therefore important for employers to consider the factual circumstances of each case involving a potentially disabled employee and in particular to take the following steps:
- meet with the employee as soon as possible to discuss their state of health, whether there is any underlying health condition, and what their GP or Consultant has said about their condition
- assess the pattern and reasons for absence and if there is an underlying reason for the absences
- review the employee's behaviour and whether this indicates an underlying health problem, especially where the employee has a potential mental impairment
- obtain focussed medical evidence either from the employee's GP or Occupational Health to better understand the condition, the prognosis, what impact it has on the employee's day to day activities and whether any adjustments can be made to the working environment to assist the employee.
Whilst it is therefore advisable to seek to obtain a medical opinion as soon as possible in cases of ongoing or recurrent absences, in circumstances where the employee is refusing to give consent or delays the process of obtaining medical evidence Tribunals are likely to be more sympathetic to the employer and may find that they were not on notice of the employee's health condition.
It is clear that whether or not an employer has knowledge that an employee is disabled and is put at a disadvantage as a result of their disability is a fact sensitive question which can only ultimately be determined by an Employment Tribunal. In order to prevent claims relating to a failure to make adjustments employers should follow the steps detailed above as a minimum. If it is then unclear as to whether or not the employee is disabled the safest stance is to make reasonable adjustments in any event if these can easily be accommodated. It is usually a risky approach to knowingly turn a blind eye to a situation where a disability may be apparent. By taking such a proactive approach and dealing with the issue head on employers are more likely to be able to defend a claim of disability discrimination based on a failure to make reasonable adjustments.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.