We’ve all heard it, we’ve posted many threads on the forum about it, and it’s becoming more and more prevalent in the workplace as staff continue to work later in life. There are more disabled people in the workplace than ever before, and this is a great thing as it enables people to continue working and contribute to the economy and to society and to your business! But it also comes with a statutory duty on employers to support those staff in the workplace, as far as is reasonable.
And remember those words!
The definition of disability under the Equality Act 2010 states that a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
“Impairment” means a condition, and this can be physical or mental, or it can be both.
The duty to make reasonable adjustments is enshrined in the Equality Act 2010, but it is unique to the protected characteristic of disability. The aim of reasonable adjustments in this respect is to make employment equitable for disabled people – to remove barriers or provide support to enable a disabled worker to make the same contributions to a workplace as a non-disabled worker. The duty is also viewed as a positive and proactive one – you should seek to consider or make adjustments as soon as you become aware that there might be a disability involved, with the aim being to support the employee.
The duty applies to all disabled people who work for you, who apply for a job with you, who even tell you they’re thinking of applying for a job with you, and in some circumstances it can continue to apply even when they have left your employment (more on that later). This means you need to consider making adjustments even for agency workers and job applicants. Do you cover the ability to make adjustments in your recruitment process? For example, by asking if there are any special requirements to facilitate interviews or should you make adjustments to assessment tasks/criteria?
Another question that often arises is when should be know that adjustments need to be considered? Legally we are not obliged to do so until we are aware of the disability, or can be reasonably expected to know of it. We cannot rely on the employee explicitly telling us – although obviously this does help! If you find an employee appears to be having difficulty with any part of their job you need to address this, as a failure to do so may come back to bite you. The employee could argue that you should have known there was a problem if it was apparent through their performance. You have knowledge if you know about a condition or issue, even if you didn’t know that this amounted to a disability.
Examples from Case Law
The Government Legal Service vs Brookes
In this case the employer was found to have failed to provide reasonable adjustments in the recruitment stage. Ms Brookes applied for a job as a solicitor which involved a multiple choice test as part of the assessment process. Ms Brookes has Asperger’s Syndrome – a recognised learning disability – and requested for the testing method to be adjusted as it was argued that this method disadvantages people with Asperger’s. A month prior to the interview Ms Brookes had requested if her answers to the same questions being asked of everyone else could be provided in the form of short narrative answers instead. The request was refused. The tribunal found this to be not only a failure to make reasonable adjustments, but also indirect disability discrimination as the method of testing and inflexibility towards modifying it would cause a disadvantage to anyone with this type of learning disability.
Lessons to be learned:
Be careful in what types of assessment criteria you use for vacancies and be open to changing these methods to accommodate disabled staff. Provided the adjustment still allows you to fulfil your business need – as it would in this example – it would be deemed reasonable.
Hinsley vs Chief Constable of West Mercia Constabulary
In this case a police officer resigned her post, with her resignation only being accepted after numerous attempts by the employer to convince her to stay. Not long after the resignation was accepted the officer met with her GP who diagnosed her with depression, which the officer felt explained why she had been feeling as she had towards her job for such a long time. After her employment had ceased, but only by a month, she asked the employer if she could be reinstated, as she felt her decision was made under the influence of her depression and had not been properly considered. West Mercia Constabulary refused and referenced regulations that state that when an officer resigns their post they would effectively have to start from scratch and work their way back up should they rejoin. The officer argued that this was unfair given that she was suffering from long-standing depression, which would fall under the definition of disability, and therefore not allowing her to rescind her resignation and return to her original rank was a failure to make reasonable adjustments.
The ET initially sided with the Constabulary, relying on the policy and saying that the constabulary did not need to go beyond its regulatory powers to reinstate the officer. However, at appeal the EAT disagreed, citing there was no provision in the regulations to prohibit the reinstatement of the officer, and that to dispense with the usual recruitment process would have been a reasonable adjustment.
Lessons to be learned:
Your obligation to make reasonable adjustments extends even at the point a resignation has been provided and even potentially after an employee has left their post – although the timeframe of this does need to be taken into account. In this case the request to return was made only a month after employment had ceased, and no arguments could be made by the Constabulary that the post had been filled or was no longer required. A claim would be less likely to be successful if a significant time period had passed.
Wilcox vs Birmingham Citizens Advice Bureau Services Ltd
In this case Ms Wilcox worked for the citizens advice bureau (CAB) and requested a move of work location as she was reported to suffer with agoraphobia and travel anxiety which prevented her from being able to use public transport. She also argued that a previous reduction in salary (which was not part of the issue) meant she could not afford to pay for parking. The employer met with her to discuss the reasons for her request at which she mentioned that public transport made her anxious but not whether this was part of an underlying medical condition. When she later made the request in writing she did not reference any medical issues, or the travel anxiety.
The CAB were unable to grant the request on a permanent basis as they felt that the legitimate business need was for the employee to be based where the original contract of employment was, as this was where services needed to be provided. They therefore refused the request and Ms Wilcox went off sick citing work-related stress. The employer invoked their usual sickness management procedure. During the process she did not mention the travel anxiety and also tried to delay the employer’s attempts to obtain a medical report, citing later that she was embarrassed about the condition. Eventually a report was obtained from her GP which stated that she had a great deal of anxiety about travelling and recommended allowing her to work closer to home. The employer discussed this with her but again confirmed a permanent move was not possible on business grounds. Ms Wilcox eventually resigned and claimed constructive dismissal and disability discrimination.
The ET found in favour of the employer, citing that as they had no knowledge of any potential disability they could not have knowingly discriminated or failed in their duty to make reasonable adjustments. They also agreed with the employer in that a permanent change to location was not reasonable as it would be detrimental to the needs of the business, and therefore the proposed relocation was unreasonable.
Lessons to be Learned:
You have to know that there is a disability before you can do anything about it, but on discovery you should seek appropriate advice. Make it clear to the employee that if there is an underlying health condition there is nothing to be ashamed of and it will not disadvantage them, if anything it will enable you to support them more. But also be mindful of what is reasonable – you should not have to disrupt your business in order to accommodate a disabled employee.
So what does this all mean in practical terms?
You need to be prepared for the possibility that you might already have, or you might bring in, an employee with a disability and that adjustments might need to be made for them.
Think in advance what the core tasks of each role are and what adjustments might be possible. So for example, if you have a Practice Nurse with MSK problems what can you do to support them at work? Be it equipment (stools, height-adjustable couches, ergonomic computer equipment) or working practices (adjustments to clinic times, increase catch-up slots, etc.)
Put in place a process or policy. We have a policy for everything else, why not one for reasonable adjustments? This would clearly set out your obligations, the process for requesting an adjustment, and what the Practice considers to be reasonable. You can embed this into an existing policy – your absence or performance policies for example – or have it as a standalone policy for staff to refer to. This enables you to be open with your staff on the Practice’s approach to disability and demonstrates your commitment to supporting them in the workplace and ensuring equity of access.
If you’re making renovations or alterations to your premises, or even moving premises entirely, consider how you can make the workplace accessible for disabled people. And don’t discount future employees or visitors – just because you may not have anyone with accessibility problems now, doesn’t mean you never will.
Ensure you know what support is out there. The term “reasonable” can stretch further than you think when you consider what schemes and funds are available to support disabled people in the workplace. Your business might not be able to afford a stairlift on your own, but there might be support from places like Access to Work that do make that cost more bearable – and a failure to make adjustments on the basis of cost without exploring funding avenues does not go down well at tribunal.
It sounds like a cop-out, but what is reasonable will depend on the circumstances of each case and will be influenced by a variety of different factors. As an employer you need to be objective, and be sensible when assessing what you can and can’t do. Seek advice from experts or peers, check what support is out there to assist and avoid making any rash decisions. You need to consider not only the costs of adjustments, but also whether they are practical, effective, and that they don’t have a detrimental impact on the health and safety of others.
The EHRC Code gives a wonderful raft of examples of reasonable adjustments and explains the duty in more legal terms (see Section 6).
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