Disability discrimination: reasonable adjustments

Most employers understand that the Equality Act 2010 requires them to make reasonable adjustments for disabled employees. The challenge is often determining which adjustments are reasonable in the circumstances, how far the duty extends and what steps should be taken to reduce the risk of Employment Tribunal claims.

We outline below the practical considerations for employers when assessing whether they are required to make reasonable adjustments and what action may be appropriate.

Why consider reasonable adjustments

Employers have legal obligations under the Equality Act 2010. If an Employment Tribunal finds that an employer has failed to comply with its duty to make reasonable adjustments, it may award compensation. Depending on the claim, this can include compensation for financial loss and injury to feelings, with no statutory cap on compensation for discrimination.

Employers should therefore take reasonable steps to identify and address workplace disadvantages experienced by disabled employees. A careful, documented assessment can help demonstrate that the employer has considered its obligations and the options available.

Good deeds taken outside of the Disability Discrimination Act

Some employers want to provide support beyond their legal obligations. However, additional arrangements can create practical difficulties if expectations are unclear. We help employers assess the implications and communicate decisions sensitively.

Step 1 – is the employee disabled within the meaning of the Disability Discrimination Act?

An employee is generally disabled under the Equality Act 2010 if they have a physical or mental impairment with a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Meaning of disability translated into working life

The definition can cover difficulties with activities such as using a computer, interacting with colleagues, following instructions, driving or carrying everyday objects.

Examples of impairments

Depending on their effects, impairments may affect:

• Continence;
• Co-ordination;
• Dexterity;
• Lifting and carrying;
• Memory, concentration, learning or understanding;
• Mobility;
• Perception of risk or danger; and
• Sensory perception.

Obvious situations where reasonable adjustments may be needed

Conditions such as cancer, multiple sclerosis, arthritis, stroke and motor neurone disease may require employers to consider adjustments. A diagnosis alone does not determine whether the statutory definition is met.

Reasonable adjustments still required for invisible disabilities

Disabilities are not always apparent. Depression, PTSD, dyslexia, diabetes, epilepsy, autism and ADHD may qualify, depending on their effects. Employers should remain alert to potential disabilities and avoid assumptions about an employee's needs.

Surprising situations

Conditions such as obesity, stress and addiction do not automatically amount to disabilities. However, their effects may meet the statutory definition. The assessment focuses on the effects of the impairment, rather than simply its cause or diagnosis.

Disability Discrimination Act – when a duty to make reasonable adjustments arises

The Disability Discrimination Act 1995 has largely been superseded by the Equality Act 2010 in Great Britain. The duty to make reasonable adjustments may arise where an employer knows, or could reasonably be expected to know, that an employee is disabled and is likely to be placed at a substantial disadvantage.

Extent of the duty to make reasonable adjustments

Employers must take such steps as are reasonable to avoid the relevant disadvantage. This may require treating a disabled employee more favourably than a non-disabled employee.

Working practices

Employers should review workplace practices and policies that may disadvantage disabled employees. Examples include expectations to work additional hours or sickness absence policies that fail to account appropriately for disability-related absence.

The duty does not generally extend to making adjustments for employees because they care for a disabled person, although discrimination by association and other employment rights may be relevant.

Step 2 – How far reaching are the reasonable adjustments required?

The appropriate adjustments depend on the individual circumstances. Employers should assess the options available, consult the employee and document their reasoning.

Reasonable adjustments – all depends upon the facts

Relevant factors include the effectiveness and practicality of an adjustment, its cost, the employer's resources and the size and nature of the business. Failure to make reasonable adjustments can itself amount to disability discrimination.

Reasonable adjustments – range of considerations required

Employers should consider:

• How effectively the adjustment addresses the disadvantage;
• Its practicality and cost;
• The impact on business operations;
• Available financial and other resources; and
• Whether external assistance is available.

Adjustments that can work in practice

Possible adjustments include redeployment, changes to working hours and time off for treatment or rehabilitation. Any proposed changes to contractual terms or pay should be assessed carefully, with agreement obtained where required.

Reasonable adjustments the employer is expected to pay for

Where an adjustment is reasonable, the employer will generally bear the cost. Examples include specialist equipment, software, training, readers, interpreters and workplace adaptations. The duty continues throughout employment, as an employee's needs may change.

Requests for adjustments made by a disabled person can be declined

Employers are not required to make adjustments that are unreasonable in the circumstances. However, they should consider requests carefully, explain their decisions and explore effective alternatives where necessary.

Effective communication

Employers should consult employees about their needs and proposed adjustments. Medical or occupational health advice may assist. Family members or other support persons should only be involved where appropriate, with due regard to confidentiality and consent.

Where no reasonable adjustments can be made

If no reasonable adjustment appears available, employers should consider alternatives and obtain advice before contemplating dismissal. Frustration of an employment contract applies only in limited circumstances, and earlier conduct may still give rise to a discrimination claim.

Step 3 – Managing employees who are not disabled

Where an employee does not meet the statutory definition of disability, the specific duty to make reasonable adjustments will not arise on that basis. Other employment law obligations may nevertheless apply.

Adjustments that impact upon other employees

Adjustments may affect colleagues and working arrangements, but objections from other employees do not automatically justify refusing an adjustment. Employers should assess the practical impact, explore alternatives and document their reasoning.

Gannons helps employers assess reasonable adjustment obligations, review workplace policies and develop practical solutions to reduce discrimination risks.