All businesses should be mindful of the need to avoid discrimination on the grounds of disability. However, when it comes to the duty to make reasonable adjustments there is still a great deal of uncertainty over the scope of this positive obligation and when it arises.
This duty arises where the employer knows (or ought to know) that the individual is disabled and that they are likely to be placed at a substantial disadvantage because of their disability. In such circumstances, and in accordance with the EU Equal Treatment Framework Directive, the employer needs to take “appropriate measures to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training unless this would impose a disproportionate burden on the employer”.
Who is protected?
The duty applies to job applicants, contract workers, office holders, consultants, employees and former employees. Potential applicants would not, however, be covered. This means there is no need to adjust your premises in case a disabled person might apply. Non-disabled workers are not covered, even where they are associated with a disabled person; for example, because they are the parent of a disabled child.
The disability must be recognised in the Equality Act 2010. A ‘substantial’ and ‘long term’ condition is required. Short-term medical conditions lasting less than 12 months, as well as drug and alcohol addiction, are not included.
What is the duty?
Employers are under an obligation to make a reasonable adjustment when a disabled person is placed at a ‘substantial disadvantage’ compared with a non-disabled person because:
- of a provision, criterion or practice (PCP);
- of a physical feature of the employer’s property; or
- they lack an auxiliary aid.
In the case of the first two reasons, companies must take reasonable steps to avoid the disadvantage, and, in the third reason, to provide the auxiliary aid.
In cases where an employee is on long-term sick leave, the duty only arises once the prognosis is known and where the employee will be able to return to work as soon as the adjustments are made. If the employee is unlikely to be fit to work again then the obligation may not be triggered.
What adjustments are typically considered?
There is endless scope for adjustments and this will depend on the PCP in question and the type of disability. However, it is important not to take a restrictive view of the PCP. Informal policies (such as reserved parking spaces for management and rewards for punctuality and attendance) are likely to give rise to an obligation.
Crucially, employers should take account of expert input (usually from occupational health) when assessing the practical result of the adjustments. The courts emphasise that employers are not able to make an objective assessment of the reasonableness of a proposed adjustment until they also understand the nature and extent of the substantial disadvantage imposed by the PCP. Typical adjustments can relate to working hours, heavy lifting, home working, performance-based pay and redundancy selection criteria.
In relation to physical features, this can arise from any design feature, fixture or fitting or any physical element or quality of the business’s premises, including the outside steps of the building, stairs, kerbs, exterior surfaces, parking areas, paving, entrances and exits, lighting and ventilation, signs and furniture.
Auxiliary aids typically considered include text-to-speech software, ergonomic chairs and adapted keyboards and handsets.
Finally, when considering the need for adjustments employers should always consider whether or not the employee is placed at a substantial disadvantage when compared to others. In some cases, for example type 2 diabetes, while a disability, does not merit a requirement for a reasonable adjustment to the employer’s full-time working policy since it can be managed with a proper diet and adequate rest.
What is the downside of failing to comply?
Businesses that simply ignore or mistreat disabled staff are likely to receive significant negative press. In addition, a failure to make a reasonable adjustment would prevent the employer from running a defence to a disability claim on the grounds that the discrimination is objectively justified.
As with other discrimination claims there is no cap on the liability. Careful consideration is required before refusing an adjustment on the grounds of reasonableness. It is always worth taking legal advice at an early stage to avoid claims arising in the first place.
Michael McCartney is a partner in the employment team at Fladgate