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Expert Insights

24 March 2016

Disability discrimination: making reasonable adjustments

Employers are obliged to make reasonable adjustments to assist disabled employees, under section 20 of the Equality Act 2010. This duty, whilst sometimes onerous for employers, forms a very important part of the UK’s legislation to counter disability discrimination at work. It is a simple concept, but one that is not always so simple to implement. 

Court of Appeal decision

A recent decision of the Court of Appeal states that the duty upon employers to make reasonable adjustments for disabled employees extends to absence management policies. Accordingly, employers may need to adapt and relax absence management policies where absence is disability-related. This decision provides helpful guidance, but also demonstrates that the duty is a far reaching one, and that it is essential that employers understand, and keep in mind, their obligations towards disabled employees. 

When does an employer have to make reasonable adjustments for an employee?

The duty to make reasonable adjustments arises only in relation to employees who have a disability, as defined in the Equality Act 2010. The definition of a disability is not snappy, but suffice to say that it is probably wider than most people realise. It is the same test as is used for the other strands of disability discrimination law under the Equality Act. 

The duty to make reasonable adjustments applies in respect of disabled:

  • job applicants (and those who indicate that they may apply for a role);
  • employees, workers, apprentices and some self-employed workers;
  • former employees (if a substantial disadvantage remains beyond the termination of employment).

The duty arises where a disabled employee is placed at a substantial disadvantage, in comparison with those who are not disabled, by:

  • an employer’s provision, criterion or practice;
  • a physical feature of the employer’s premises;
  • an employer’s failure to provide an auxiliary aid. 

When can employers be exempt?

Employers will only be exempt from the duty if:

  • the employer does not know, and could not reasonably be expected to know, that the disabled person has a disability;
  • the employer does not know, and could not reasonably be expected to know, that the disabled person is likely to be at a substantial disadvantage.

Employers should be proactive and should not delay.  If an employee’s conduct suggests that there may be a disability, this should alert the employer to a possible need to make reasonable adjustments. The employee need not have requested reasonable adjustments. Employers should also consider which adjustments could be made and discuss these with the employee.

What are reasonable adjustments?

What counts as a reasonable adjustment will be very fact specific. What is ‘reasonable’ will be assessed objectively by the tribunals. There is no duty to make adjustments that would impose a disproportionate burden on the employer. 

Assessment of what is ‘reasonable’ will include consideration of:

  • the extent to which the adjustment would help;
  • the extent to which it is practical;
  • the costs of making the adjustment and whether it would disrupt the employer’s activities. (Where the cost of an adjustment is a potential barrier, the employer should investigate whether public funding or other financial assistance is available.);
  • the resources available to the employer. 
  • the nature and size of the employer’s undertaking
  • in relation to a private household workplace, the extent to which the step would disrupt that household or its residents.
Some examples of reasonable adjustments
  • facilitating access by provided a ramp, widening a doorway or moving furniture;
  • producing materials in braille, audio or large print;
  • reallocating some of a disabled person’s duties;
  • altering hours of work;
  • relocating a place of work;
  • modifying equipment or providing new equipment;
  • providing a support worker, reader or interpreter;
  • adjusting redundancy selection criteria;
  • modifying performance related pay;
  • modifying absence management policies.

What about absence policies?

In the recent case of Griffiths v The Secretary of State for Work and Pensions, the employer had an absence management policy under which formal action could be taken against an employee where absences reached a specified unsatisfactory level of eight days (the consideration point). 

The employee was absent for 66 days, 62 of which were as a result of an illness arising out of her disability. On her return to work she received a formal written improvement warning. She claimed that the employer had failed to make reasonable adjustments. Specifically, the 62 days of disability-related absence should have been disregarded, and her consideration point should have been increased. 

The employer argued that the requested adjustments did not fall within the scope of the duty to make reasonable adjustments, because they would not enable a disabled employee to return to work or to keep on working. The court rejected this argument and held that the duty could extend to any steps to remove a disadvantage for a disabled employee. So the duty to make reasonable adjustments was engaged in relation to the absence management policy (but the adjustments sought were not ‘reasonable’ adjustments that this employer could reasonably be expected to take). 

On a related point, in a separate case, the Court of Appeal held that extending sick pay for a disabled employee was not an adjustment which it would have been reasonable to require the employer in that case to make. 

Employers seeking to rely on absence management policies should therefore consider whether the duty to make reasonable adjustments is triggered, perhaps with input from occupational health advisers.  The fact that these cases are finding their way all the way up to the Court of Appeal demonstrates that applying the duty to make reasonable adjustments is not always straightforward or obvious. 

Originally published in Purely Payroll, March 2016