In this article we explore issues for employers to consider when engaging the duty to make reasonable adjustments.
Employers have a duty to make reasonable adjustments where an employee, job applicant or even former employee is at a substantial disadvantage compared to a person that is not disabled. In this article, we explore exactly that this means for employers.
The duty to make reasonable adjustments applies both to disadvantages that arise from physical features of the employer’s premises or from a provision, criterion or practice, such as a policy, applied by the employer.
Reasonable adjustments aim to remove the disadvantage experienced by a disabled person. The word reasonable is key, as the law is clear that employers only need to go as far as is reasonable in the circumstances. The duty only kicks in when an employer knows or ought reasonably to have known about the individual’s disability.
Contrary to the common understanding of the term disability, in the context of the duty to make reasonable adjustments under the Equality Act 2010, a disability is any ‘physical or mental impairment that has a substantial effect on the individual’s ability to carry out normal day-to-day activities’. This definition catches a wide range of conditions which will last or are likely to last for a period of 12 months or more and which have a more than trivial effect on day-to-day activities.
There is no one-size fits all approach to reasonable adjustments and the nature of the adjustments that might be appropriate in any given case will depend on a multitude of factors, including the nature and extent of the substantial disadvantage suffered by the individual and the practical results of steps that the employer can take with the aim of helping the employee access, remain in, return to, or progress in employment. In determining whether an adjustment is reasonable or not, employers can have regard to a variety of considerations including financial resources, practicability and the likely effectiveness of the adjustment.
Employers may wish to consider the following when making adjustments:
1) Discussing the employee’s disability
It is important for the employer to make suitable reasonable adjustments for the employee, and who better to paint the picture of what those might be than the employee themselves? Ask the employee to explain what and how they struggle with their disability in the workplace and ultimately how they think the employer could help to alleviate the disadvantages they face in performing their work duties as a result of their disability.
Be sure to keep a record of such conversations and to follow up any action points agreed.
2) Implementing ‘physical’ reasonable adjustments
The physical workplace can be a barrier to employees suffering with certain disabilities. To remove barriers for, for example, wheelchair users, employers may need to consider widening doorways, providing ramps, installing lifts and/or stair lifts (although this is unlikely to be a reasonable adjustment for a small employer), moving furniture and/or relocating light switches and door handles.
In other cases auxiliary aids such as adapted keyboards, supportive chairs and larger screens may be appropriate.
3) Redeployment and adjusted duties
Where an employee is physically unable to do the role that they are currently in as a result of their disability, a reasonable adjustment could be to offer to transfer that employee to a new role. While offering a disabled employee an existing vacancy may be a suitable adjustment, bear in mind that there is no obligation to create a new role specifically for the employee concerned.
Other reasonable adjustments could include offering flexible working hours or work locations, allowing employees to be absent during working hours for training, rehabilitation or assessment, providing readers or interpreters, or even modifying company disciplinary or grievance policies.
4) Seeking the advice of Occupational Health
In seeking advice from Occupational Health on what reasonable adjustments to make, or whether any need to be made, employers should be specific about the nature of the employee’s disability and what they want to know. Employers should provide details of the perceived effect of individual’s disability, the nature and demands of their role, if possible, the potential reasonable adjustments that are being considered and where specifically they need advice on specific adjustments.
5) Encouraging the employee to approach Access to Work
Disabled employees should be encouraged to reach out to the government’s Access to Work grant scheme, which aims to support disabled people and their employers to overcome barriers in the workplace. Grants through the scheme can be used, for example, to pay for adaptions to premises or to existing equipment, special aids equipment and support workers. Not only does the scheme help by offering grants, it can also assist with conducting work place assessments and make recommendations on appropriate reasonable adjustments that an employer could make.
6) Considering whether the adjustment will actually work in practice
Finally, it is important to consider whether the proposed adjustment will actually work. If the adjustment will not in practice alleviate the disadvantage which the disabled employee is facing, then it is unlikely to be seen as a reasonable change for the employer to make.
When considering what adjustments may or may not be reasonable in the circumstances, employers are well-advised to document what they have considered, if it is not reasonable why this is the case and if it is reasonable any parameters set such as trial periods. It is also important that employers keep any adjustments under review as circumstances may well change and an adjustment which wasn’t reasonable at one point may well become reasonable down the line.