13 December 2017
Disability charity, Scope UK, reports that almost one in five people in the UK has a disability (13.3 million people) and, of those, around 3.4 million are currently in employment.
Often, we find our employer clients are aware of the legal duty to make reasonable adjustments to ensure disabled workers are not substantially disadvantaged when undertaking their jobs. But, what those adjustments should look like, and exactly what constitutes "reasonable", can be somewhat grey. Helpfully, ACAS has published new guidance ("Reasonable Adjustments in the Workplace") to assist.
Under the Equality Act 2010 (the Act), a person is disabled if they have a physical or mental impairment which has a substantial adverse and long term effect on their ability to carry out normal day-to-day activities. Certain conditions automatically constitute disabilities under the Act, for example cancer, HIV infection and multiple sclerosis.
The duty to make adjustments can arise where a disabled person is placed at a substantial disadvantage by: (a) an employer's "provision, criterion or practice" (PCP) (which is also referred to in indirect discrimination cases); (b) a physical feature of the employer's premises; or (c) an employer's failure to provide an auxiliary aid.
The scope of the legislation is broad, covering not only employees and workers (including trainees, apprentices and business partners), but also job applicants. ACAS therefore notes the importance of adjusting any recruitment processes to accommodate an applicant's disability and flags the potential discrimination risk if an employer fails to do so. Although an employer only needs to make adjustments where it is aware, or should reasonably be aware, that a worker has a disability, it is important to ask the right questions at the start of any recruitment process, so that adjustments can be made on an individual basis for any candidates who require them.
The scope of possible reasonable adjustments is also wide. For example, if an employee has mobility issues, an employer should consider making physical changes to premises (such as installing ramps or automatic doors for a wheelchair user), or reserving a parking space nearby the office. In other cases, auxiliary aids or special equipment might be needed (such as a special keyboard for someone with arthritis), or more lighting and clearer signs for those with sight difficulties. For a worker with social anxiety disorder, an employer should consider providing the individual with their own desk instead of hot-desking.
Other adjustments could include changing a worker's hours or place of work, either as part of a phased return after a period of sickness absence or on a longer-term basis. Provision of extra support or supervision may be reasonable, as may changes to internal processes. For example, in Perratt v City of Cardiff Council the Employment Appeal Tribunal (EAT) held that the employer’s duty to consider the adjustment of allowing an employee with a poor memory (caused by a disability) to record meetings was triggered. In another case, the EAT held that an “expectation” that an employee work late could be a PCP triggering the duty to make reasonable adjustments; so it may be a reasonable adjustment for a disabled employee to work only his or her contractual hours (Carreras v United First Partners Research).
In any redundancy situation, it would be reasonable for employers to disregard periods of disability-related absences when applying selection criteria. Similarly, employers should modify sickness absence triggers when an employee has been off work due to a disability (i.e. the number of days an individual can be off work before the company considers warning, and potentially dismissing, them unless attendance at work improves). Crucially (and often overlooked or not known by employers), a failure to adjust the application of a sickness absence policy for a disabled worker could constitute a breach of section 15 of the Act ("discrimination arising from disability"), as well as a failure to make reasonable adjustments under sections 20-21.
What is "reasonable" will depend on various factors, including the size of the employing organisation and the level of resources at its disposal. While ACAS confirms that employers are not expected to change the basic nature of a worker's role, where there is a reasonable adjustment cost that should be borne by the employer (albeit government assistance is available in some circumstances to help with the financial costs). The ACAS guidance also gives an overview of how a worker can ask for a reasonable adjustment to be made.
As the Equality and Human Rights Commission Code of Practice points out, there is no onus on a disabled worker to suggest what adjustments should be made to assist them in the workplace. In any event, an employer cannot discharge its duty to make reasonable adjustments by simply relying on recommendations from the individual concerned.
With this in mind, if an employer becomes aware that an employee has a disability or condition needing support, it is usually best to refer the individual to an Occupational Health practitioner for an expert medical view.
Carefully tailoring questions and getting a detailed medical assessment from OH can help to paint a clearer picture as to the needs of an individual worker, and how best to support them in the workplace. For example, OH can give a useful insight into whether an individual is fit for work, whether their condition constitutes a disability under the provisions of the Equality Act, whether a phased return is recommended and what adjustments are needed, if any, to assist with the role on a day-to-day basis.
The courts have made clear that an employer should ask OH precise practical questions about the existence of any impairment and its impact, to enable them to assess for themselves whether the criteria for disability are met (not just general questions about whether an employee is disabled under the Act).
Ultimately, the legal duty to make reasonable adjustments under the Act is broad, so employers should apply an open-minded approach when considering whether adjustments are needed to support a disabled person at work.
Seeking OH input is a key first step for any prudent employer to show they are taking the duty seriously and, ultimately, to minimise the risks of a disability discrimination compensation award. That said, employers should not just "rubber stamp" a view from OH. When assessing whether the duty arises, it is helpful to keep at the fore the key objective of the Act: which is to put disabled workers on an equal footing with their non-disabled colleagues.