According to government statistics, 13 per cent of the UK’s workforce has a disability within the definition of the Equality Act 2010. It is therefore more important than ever that employers can both provide an inclusive and accessible workplace for all employees and understand their duty to make reasonable adjustments where needed. Despite this, many companies struggle with how to alter their business to ensure that disabled people are not disadvantaged at work.
As was noted in a recent report by the Solicitors’ Regulation Authority (SRA), there is no one factor or action that creates a positive workplace. Inclusivity will not be achieved by simply having an appropriate policy in place. The report points out that even law firms struggle with how reasonable adjustments should be approached and implemented.
The position under the Equality Act is that employers must make reasonable adjustments in respect of disabled job applicants, employees and, in limited circumstances, former employees. This duty arises where a disabled person would otherwise be subject to a substantial disadvantage by reason of a provision, criterion or practice of the employer, a physical feature of its premises or its failure to provide an auxiliary aid.
Businesses will be liable for failure to make such adjustments where they know or ought reasonably to have known that an individual is disabled and that they were likely to be subject to this type of disadvantage. Failure to adjust may amount to disability discrimination, exposing employers to potential uncapped claims. It will not be a defence that an employer was wilfully ignorant of such matters. Accordingly, it is important that employers ensure that they implement practices within their business to encourage open communication with employees, so that reasonable adjustments may be made where needed.
Advice for employers
There are practical steps businesses can take to promote both open discussion and disability inclusion. As a first step, employers should ensure that diversity training is provided to all staff. However, it is important to recognise that inclusivity should stem from the top of the business and from the beginning of employment. Employers should therefore ensure that managers are able to have open discussions about disability inclusion and to initiate conversations about reasonable adjustments with their direct reports. Tailored diversity training for managers may assist.
Attendance at diversity events and creation of staff disability networks should be encouraged and management-led where possible, while business strategy meetings should include regular discussions regarding disability inclusion and staff diversity feedback. Further, recruitment processes should be reviewed to ensure that any barriers to disabled candidates are removed, such as making sure psychometric tests do not create undue disadvantage.
Equally, businesses should record and monitor workplace diversity data alongside any adjustment requests. Employee disclosure will be encouraged by being open as to why such information needs to be collected by the business. This is also important for data protection compliance purposes.
As to making adjustments, employers should be open-minded to managing employees and their working patterns, including considering flexible working times where possible. The Equality and Human Rights Commission Code provides examples of adjustments that may be reasonable for employers to make depending on the circumstances. Moreover, employers can seek to obtain occupational health reports to assess and tailor adjustments. Any reasonable adjustments should be recorded from the recruitment stage onwards and regularly monitored.
Above all, employers should aim to provide an open, supportive environment so employees feel comfortable in raising any concerns; this allows adjustments to be made as needed. Step one is communication and a proactive approach is needed to avoid some of the pitfalls to which, as the SRA report notes, even law firms can fall prey. This approach will undoubtedly lead to other benefits including improved employee retention and welfare.
Brian Gegg is a partner and Asten Hawkes a solicitor at BDB Pitmans