Most employers know that the Disability Discrimination Act requires them to make adjustments at work. We find what employers struggle with is in determining what “reasonable adjustments” are needed to stay out of the Employment Tribunal.
We outline below the practicalities for employers dealing with working out what, if any, reasonable adjustments they are compelled to take.
There are legal aspects binding on employers under the Disability Discrimination Act. If the Employment Tribunal determines the employer has discriminated against the disabled employee the consequences can be grim. An award of potentially unlimited compensation to include loss of remuneration (past and future) can be made by the Employment Tribunal.
There are considerations the employer should demonstrate it has taken to defend any claim against it brought by an employee under the Disability Discrimination Act as explained.
In addition to the legal requirements of the Disability Discrimination Act, we are mindful that some employers want to do more than their strict legal obligations. But good deeds can sadly backfire. We help employers make those difficult judgement calls and help with the delicate communications.
Not all employees, contrary to what they may say, are within the protection of the Disability Discrimination Act.
An employee is only “disabled” for the purposes of the Disability Discrimination Act if:
Translated into the work place, the definition of “disability” covers a variety of activities. It can include difficulties with: using a telephone, computer or desk, interacting with colleagues, following instructions, driving or carrying everyday objects.
Examples of impairments that could be considered a disability include:
The reference to disability is easy to link in some cases. For example most employers would understand that the following illnesses cause problems for which adjustments are required.
A particular area of difficulty for employers where we often advise is where an employee’s disability is not evident. In these situations even the employee may not be fully aware of their disability. Employers need to be particularly sensitive to the possibility of ‘hidden’ or ‘invisible’ disabilities.
Examples of invisible disabilities falling within the protection of the Disability Discrimination Act include:
Much of the law on disability has been built up by case law. Certain conditions are not considered a disability in law however the condition itself should be viewed together with its effects. For example, obesity in itself is not a disability. However, many of its symptoms such reduced mobility, depression and heart conditions could well mean that an employee meets the statutory definition of disability. The cause of the “disability” is not relevant. It is the effect of the employee’s various mental and physical impairments which matter.
Where there is a substantial adverse long term impact on the employee’s ability to carry out day-to-day activities, a disability may exist. This would also be the case where an employee suffers from stress or addictions such as alcoholism.
In all cases, once an employer is on notice, or should be on notice, the employer does have a duty to establish what adjustments are required. The duty extends to obtaining medical reports, occupational therapy reports and acting reasonably whilst assessments are made.
Under the Disability Discrimination Act the duty to make reasonable adjustments arises where: “the employer knows, or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability”.
The employer needs to be prepared for the possibility that sometimes it must treat the disabled employee more favourably than a non-disabled employee.
Employers dealing with a disabled employee should start by examining their working practices. A common example is a general expectation for employees to work longer than their contracted hours. This can put a disabled employee at a substantial disadvantage if they are unable to work the extra hours.
Another area for review is staff handbooks. A sickness absence policy that fails to take into account extended or frequent absences due to disability may also be deemed to create a disadvantage for the disabled employee.
In law, the duty to make reasonable adjustments such as time off work does not apply to non-disabled employees looking after a disabled person. There may of course be HR considerations outside of the legal rules to take.
An employee struggling to cope with looking after a disabled person can make a request for flexible working. The employer is not legally bound to make adjustments to the job for a person looking after a disabled person. The law surrounding disability discrimination differs in some respects from the law surrounding sex discrimination. This is an area where the same rules do not operate.
The onus is on the employer to show that the adjustments made are reasonable. If the disabled employee claims that the employer has not gone far enough to make reasonable adjustments the employer will need to prove that their actions are justified.
What is reasonable will be determined on the facts of each individual case. Relevant factors include the employer’s size and financial resources.
The point is, an employer’s failure to make reasonable adjustments, even if it is not intentional, can be considered direct and or indirect discrimination. Indirect discrimination is where there is a policy or practice which seems to apply equally, but which actually puts a disabled employee at an unfair disadvantage compared with non-disabled employees.
Employers should think about:
A prudent employer will keep a record of its deliberations.
Generally speaking the following are examples of the types of adjustments employers would be expected to consider:
There are various expenses that the employer is expected to foot. For example:
The duty to make reasonable adjustments exists throughout the employment. There may be more than one set of adjustments required.
Where there isn’t an adjustment than can reasonably be made to avoid a disadvantage an employer can decline a request. Very often the situation is not clear cut. At the very least, the employer needs to be consulting with the disabled employee to explain the situation.
In these types of cases it can be sensible to include family and friends in discussions if this would improve communication. But, discussions are confidential so the employer should make sure it has the appropriate consent from the disabled employee before engaging on a wider discussion.
It is possible for an employment contract to be frustrated, i.e. the employer and employee are no longer bound to perform their obligations. The effect is that the contract is automatically discharged. If there was something which it was reasonable to expect the employer to do in order to keep the employee in employment, the doctrine of frustration will not apply.
There is a body of case law to support the frustration of an employment contract in these circumstances. The process to establish frustration is complex and turns on the particular facts of each case.
Employers should be aware that their conduct prior to the point of frustration could still form the basis of a claim for disability discrimination.
In cases where there is not a disability within the meaning of the Disability Discrimination Act the employer is not under an obligation to make adjustments.
If a reasonable adjustment for one disabled employee could have an impact on other employees the question becomes what rights do the non-disabled employees have? The employer will have a duty to consult with any employees who are impacted. The question is – what happens if an employee objects to the changes? Obstructive or unhelpful employees are unlikely to provide an employer with a reasonable excuse for not making reasonable adjustments. The employer will need to demonstrate that it took such behaviour seriously and took sufficient steps to deal with it appropriately.
Matt Gingell is a partner in the employment law team. His considerable experience in defending disability discrimination claims allows him to guide employers through the process of identifying disabilities and reasonable adjustments. Employers often use him as a sounding board before taking a decision.