Tribunal confirms employers’ broad duties to make reasonable adjustments

A recent EAT case demonstrates that it’s up to the company – not the employee – to identify adjustments for staff with disabilities

In Home Office (UK Visas & Immigration) v Ms Kuranchie, Ms Kuranchie had “an excellent educational background” and had progressed through the Home Office's ranks to the position of assistant director. The parties agreed that she had dyspraxia and dyslexia.

In 2013, she expressed concern that a lack of adjustments to accommodate her disability meant she was having to work long hours to complete her work. The Home Office agreed to the claimant's request for compressed hours (36 hours worked over four days rather than five) so that she would have greater opportunity to complete her work and could schedule hospital appointments on her non-working day. It also agreed to provide assistive software (specialist equipment and a static desk) when she moved locations.

Ms Kuranchie put no further adjustments forward at the time, but her tribunal claim for disability discrimination proceeded on the basis that the Home Office should have reduced her workload so she would not be required to work longer hours than her colleagues to complete her tasks. This had not been mentioned in Ms Kuranchie's dyslexia report but was identified during the course of the tribunal proceedings as a solution to remove the disadvantage. The tribunal found that the Home Office had breached its duty to make reasonable adjustments.

The Home Office appealed against that finding, arguing that the tribunal had arrived at a solution that had not been suggested by Ms Kuranchie and had not placed sufficient emphasis on the adjustments that had been made, namely compressed hours and the promise of assistive software.

The EAT rejected that appeal, noting that the “critical question is whether the respondent has taken such steps as is reasonable to have to take to avoid the disadvantage”. The tribunal had identified reduced workload as a reasonable adjustment. The fact that this solution had not been suggested by the claimant was irrelevant when the adjustment had a real prospect of removing the disadvantage.

This decision shows that employers must apply a broad approach to the duty to make reasonable adjustments, having regard to the primary objective of the legislation, which is to facilitate the employment of disabled employees on equal terms to non-disabled employees.

The employer cannot discharge its duty to make reasonable adjustments by merely relying on suggestions made by an employee and/or occupational health. The duty to make reasonable adjustments rests with the employer and they must consider carefully what steps might be taken to remove the relevant disadvantage.

The case does not address whether, had the Home Office reduced Ms Kuranchie's workload, it would have been required to maintain her salary at the same level as her colleagues. However, pay protection may be appropriate as part of a package of adjustments to encourage full participation of employees with disabilities in the workplace. In G4S Cash Solutions (UK) Ltd v Powell, the EAT found that pay protection to allow an employee to return to work in a less-skilled role could be a reasonable adjustment in an appropriate case.

In deciding what is reasonable, an employer must consider all the circumstances, including: the effectiveness of the adjustment, its practicability, the financial and other costs of the proposed adjustment, and disruption to third parties. As the Equality and Human Rights Commission Code of Practice states: “There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask).”

Annabel Mackay is a managing associate in Addleshaw Goddard’s employment team