Disability

by Kate Russell

Reasonable adjustments

As an employer, you are under a specific duty to make reasonable adjustments to accommodate the needs of a disabled employee. A reasonable adjustment is any step or steps that you can reasonably take to ensure that existing workplace arrangements don’t put the disabled person at a disadvantage in comparison with a non-disabled person.

The duty applies where any physical feature of premises occupied by the employer, or any arrangements made by or on behalf of the employer, cause a substantial disadvantage to a disabled person compared with non-disabled people.

Some examples of adjustments – by no means an exhaustive list – are given below.

Making adjustments to premises

An employer might have to make structural or other physical changes: for example, widening a doorway; providing a ramp or moving furniture for a wheelchair user; relocating light switches, door handles or shelves for someone who has difficulty in reaching, or providing appropriate contrast in decor to help the safe mobility of a visually impaired person.

Allocating duties to another person

Some duties might be reallocated to another employee if the disabled person has difficulty in doing them because of the disability. For example, if a job occasionally involves going onto the open roof of a building, an employer might have to transfer this work away from an employee whose disability involves severe vertigo.

Transferring the person to fill an existing vacancy

For example, if an employee either becomes disabled or has a disability which worsens so he cannot work in the same place or under the same arrangements and there is no reasonable adjustment which would enable him to continue doing the current job, then he might have to be considered for any suitable alternative posts that are available. Such a case might also involve reasonable retraining.

Example

A was a road sweeper for Fife Council. After surgery, she suffered complications and as a result was virtually unable to walk. She was accepted as disabled for the purposes of DDA.

She retrained and applied unsuccessfully for over 100 sedentary jobs. The council operated a competitive interviewing system. A was never the best candidate for the job. Eventually she was dismissed for incapacity. Her disability discrimination claim was unsuccessful at the employment tribunal, EAT and Court of Session, and she appealed to the House of Lords.

The Lords allowed her appeal. It was held that the terms, conditions and arrangements relating to the essential functions of her employment were ‘made by the employer’ within the meaning of the DDA. As a result, A was disadvantaged compared with staff who were not disabled, as she was at risk of dismissal. Where an employee becomes incapable of performing the duties of his job, the employer must make reasonable adjustments. In certain circumstances, this could require an employer to transfer a disabled employee to an existing post at a slightly higher grade without requiring him to undergo competitive interviewing.

A positive duty to make reasonable adjustments was therefore triggered. It may have been reasonable for the council to automatically transfer her to an existing post at a slightly higher grade, despite not necessarily being the best person for the job.

This goes beyond what was previously considered a ‘reasonable adjustment’ under the DDA.

In some cases it may be reasonable to put a disabled employee into a role already occupied by another employee.

Example

PC Jelic was diagnosed with chronic anxiety syndrome. He had been removed from front-line duties and was assigned to a non-public-facing role in 2004 until his retirement in 2008. The role later evolved to require contact with the public, and he was no longer considered suitable for it. Without warning, he was asked to attend a meeting to discuss his ‘medical retirement’, which subsequently led to the decision by the Chief Constable to retire PC Jelic with an ill-health pension. Following this report, the claimant’s medical retirement was approved without any further consideration of what reasonable adjustments could be made.

PC Jelic raised claims for disability-related discrimination and discrimination by reason of a failure to make reasonable adjustments.

His claim for unlawful disability discrimination was upheld by an employment tribunal. It held that the employer had not complied with its duty to make reasonable adjustments, due to its ‘spectacular failure to consult’ with the employee. While it accepted that the claimant could not remain in his existing role, the tribunal considered that a reasonable adjustment would have been to redeploy the claimant into a non-public-facing police officer role. This would have meant the claimant swapping roles with another police constable who was carrying out a role more suited to the restricted duties of the claimant. While this went beyond one of the examples of a reasonable adjustment set out in the legislation (of transferring to fill an existing vacancy), in the context of a ‘disciplined service’ in which the relevant police constable could be ordered to move, it was a reasonable adjustment. An alternative would have been to offer new employment in a (civilian) staff role, following the claimant’s medical retirement.

The Jelic case does not mean that employers will always have to consider swapping employees, although it could be appropriate in certain cases. It is notable that in this case, the nature of the employment meant that the employer could (and regularly did) order police officers to change roles.

Altering working hours

For example, this could include allowing the disabled person to work flexible hours to enable additional breaks, allowing him to overcome fatigue arising from the disability, or changing the disabled person’s hours to fit with the availability of a carer.

Assigning the person to a different place of work

For example, this could mean transferring a wheelchair user’s work station from an inaccessible third floor office to an accessible one on the ground floor. It could mean moving the person to other premises of the same employer, if the first building is inaccessible.

Allowing absence

It may be necessary to allow the person to be absent during working hours for rehabilitation, assessment or treatment. For example, if a person were to become disabled, the employer might have to allow that person more time off during work than would be allowed to non-disabled employees, enabling them to receive physiotherapy or psychoanalysis or undertake employment rehabilitation. A similar adjustment might be appropriate if a disability worsens or if a disabled person needs occasional treatment anyway.

Training

It may be necessary to give the person, or arrange for him to be given, training. This might be training in the use of particular pieces of equipment unique to the disabled person, or training appropriate for all employees but which needs altering for the disabled person because of the disability. For example, all employees might need to be trained in the use of a particular machine, but an employer might have to provide slightly different or longer training for an employee with restricted hand or arm movements, or training in additional software for a visually impaired person so that he can use a computer with speech output.

Acquiring or modifying equipment

An employer might have to provide special equipment, such as an adapted keyboard for a visually impaired person or someone with arthritis, or an adapted telephone for someone with a hearing impairment, or modified equipment (for example, longer handles on a machine).

There is no requirement to provide or modify equipment for personal purposes unconnected with work, such as providing a wheelchair if a person needs one in any event but does not have one. The disadvantage in such a case does not flow from the employer’s arrangements or premises.

Modifying instructions or reference manuals

For example, the way instruction is normally given to employees might need to be revised when telling a disabled person how to do a task. The format of instructions or manuals may need to be modified (perhaps produced in braille or on audio tape) and instructions for people with learning disabilities may need to be conveyed orally and with individual demonstration.

Modifying procedures for testing or assessment

This could involve ensuring that particular tests do not adversely affect people with particular types of disability. For example, a person with restricted manual dexterity might be disadvantaged by a written test, so an employer might have to give that person an oral test.

Providing a reader or interpreter

For example, this could involve a colleague reading mail to a person with a visual impairment at particular times during the working day or, in appropriate circumstances, the hiring of a reader or sign language interpreter.

Providing supervision

For example, this could involve the provision of a support worker, or help from a colleague, in appropriate circumstances, for someone whose disability leads to uncertainty or lack of confidence.

Cost and reasonable adjustment

Generally, cost will not be considered by the courts as sufficient good reason for failing to make an adjustment. The Code of Practice provides us with some guidelines, described below.

The practicability of the step

It is more likely to be reasonable for an employer to have to take a step which is easy to take than one which is difficult.

For example, it might be impracticable for an employer who needs to appoint an employee urgently to have to wait for an adjustment to be made to an entrance. How long it might be reasonable for the employer to have to wait would depend on the circumstances. However, it might be possible to make a temporary adjustment in the meantime, such as using another, less convenient entrance.

Cost and disruption

If an adjustment costs little or nothing and is not disruptive, it would be reasonable unless some other factor (such as practicability or effectiveness) made it unreasonable. The costs to be taken into account include staff and other resource costs. The significance of the cost of a step may depend in part on what the employer might otherwise spend in the circumstances.

For example, it would be reasonable for an employer to have to spend at least as much on an adjustment to enable the retention of a disabled person – including any retraining – as might be spent on recruiting and training a replacement.

The significance of the cost of a step may also depend in part on the value of the employee’s experience and expertise to the employer.

Examples of the factors that might be considered as relating to the value of an employee would include

  • The amount of resources (such as training) invested in the individual by the employer
  • The employee’s length of service
  • The employee’s level of skill and knowledge
  • The employee’s quality of relationships with clients
  • The level of the employee’s pay.

It is more likely to be reasonable for an employer to have to make an adjustment with significant costs for an employee who is likely be in the job for some time than for a temporary employee.

An employer is more likely to have to make an adjustment which might cause only minor inconvenience to other employees or the employer than one which might unavoidably prevent other employees from doing their job, or cause other significant disruption.

The extent of the employer’s financial or other resources

It is more likely to be reasonable for an employer with substantial financial resources to have to make an adjustment with a significant cost than for an employer with fewer resources. The resources in practice available to the employer as a whole should be taken into account, as well as other calls on those resources. The reasonableness of an adjustment will depend, however, not only on the resources in practice available for the adjustment, but also on all other relevant factors (such as effectiveness and practicability).

Where the resources of the employer are spread across more than one business unit or profit centre, the calls on them should also be taken into account in assessing reasonableness.

For example, a large retailer probably could not show that the limited resources for which an individual shop manager is responsible means it is not reasonable for the retailer to have to make an adjustment at that shop. Such an employer may, however, have a number – perhaps a large number – of other disabled employees in other shops. The employer’s expenditure on other adjustments, or his potential expenditure on similar adjustments for other existing disabled employees, might then be taken into account in assessing the reasonableness of having to make a new adjustment for the disabled employee in question.

It is more likely to be reasonable for an employer with a substantial number of staff to have to make certain adjustments, than for a smaller employer.

For example, it would generally be reasonable for an employer with many staff to have to make significant efforts to reallocate duties, identify a suitable alternative post or provide supervision from existing staff. It could also be reasonable for a small organisation covered by the act to have to make any of these adjustments, but not if it involved disproportionate effort.

The availability to the employer of financial or other assistance

The availability of outside help may well be a relevant factor. For example, an employer, in recruiting a disabled person, finds that the only feasible adjustment is too costly for him alone. However, if assistance is available, perhaps from a government programme or voluntary body, it may well be reasonable for him to have to make the adjustment after all.

A disabled person is not required to contribute to the cost of a reasonable adjustment. However, if a disabled person has a particular piece of special or adapted equipment which he is prepared to use for work, this might make it reasonable for the employer to have to take some other step (as well as allowing use of the equipment).

Note

Financial assistance can sometimes be made available. It’s useful to talk to the Department of Work and Pensions in the first instance for some guidance (www.dwp.gov.uk).

For example, an employer requires his employees to use the organisation’s cars for all business travel. One employee’s disability means he would have to drive his own car, which he is willing to use on business. In the circumstances, it might well be reasonable for the employer to have to allow this and pay him an allowance to cover the cost of doing so, even if it would not have been reasonable for him to have to provide an adapted car, or to pay an allowance to cover alternative travel arrangements in the absence of an adapted car.

Exemption to the duty to make reasonable adjustments

In Eastern & Coastal Kent PCT v Grey [2009] the court provided clarification of the test which, in certain circumstances, exempts employers from the usual duty to make reasonable adjustments. The duty to make adjustments does not apply if the employer does not know, and could not be reasonably expected to know, that the person has a disability and is likely to be placed at a substantial disadvantage. This case considered when an employer can rely on this exemption to avoid making adjustments.

 

Mrs Grey is dyslexic and regarded as disabled for the purposes of the legislation. She claimed that Eastern & Coastal Kent PCT failed to make reasonable adjustments for her during an interview process. In her application form, she referred to her dyslexia, but said that she did not need any special arrangements to attend the interview. She did not perform well at the interview and was not offered the post. She complained that the PCT had failed to make reasonable adjustments.

The PCT argued that it did not know and ‘could not reasonably be expected to know’ that Ms Grey was at a substantial disadvantage in comparison with the other applicants. Therefore it did not need to make reasonable adjustments for her.

The court considered the circumstances in which the exemption might apply. To be exempt from the strict duty to make reasonable adjustment, the employer must demonstrate that it

  • Did not know that the disabled person has a disability, and
  • Did not know that the disabled person was likely to be at a substantial disadvantage compared with persons who are not disabled, and
  • Could not reasonably be expected to know that the disabled person had a disability, and
  • Could not reasonably be expected to know that the disabled person was likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

The EAT decided that for the exemption to make reasonable adjustments to apply, the employer must be able to satisfy each limb of the exemption because these are cumulative and not alternative requirements.