Disability discrimination: reasonable adjustments
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.
Why consider reasonable adjustments
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.
Good deeds taken outside of the Disability Discrimination Act
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.
Step 1 – is the employee disabled within the meaning of the Disability Discrimination Act?
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:
- he or she has a physical or mental impairment which has a substantially adverse and long-term effect on their ability to carry out normal day-to-day activities.
Meaning of disability translated into working life
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
Examples of impairments that could be considered a disability include:
- Memory, ability to concentrate, learn or understand;
- Perception of risk or danger; and
- Sensory perception.
Obvious situations where reasonable adjustments may be needed
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.
- Stroke or heart attacks
- Multiple sclerosis
- Motor neurone disease
Reasonable adjustments still required for invisible disabilities
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:
- Depression and mental health conditions;
- Post-traumatic stress disorder (PTSD);
- Dyslexia and other learning disabilities;
- Diabetes and epilepsy; and
- Autism spectrum disorder (ASD), attention deficit hyperactivity disorder and Asperger’s syndrome.
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.
Disability Discrimination Act – when a duty to make reasonable adjustments arises
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.
Extent of the duty to make reasonable adjustments
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.
Step 2 – How far reaching are the reasonable adjustments required?
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.
Reasonable adjustments – all depends upon the facts
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.
Reasonable adjustments – range of considerations required
Employers should think about:
- The extent to which the adjustment would ease the disadvantage suffered by the disabled employee compared to a non-disabled employee;
- The practicability of the adjustment;
- The costs of making the adjustment;
- The extent to which the adjustment would disrupt the employer’s activities;
- The financial and other resources available to the employer;
- The availability of external financial or other assistance; and
- The nature and size of the employer’s business.
A prudent employer will keep a record of its deliberations.
Adjustments that can work in practice
Generally speaking the following are examples of the types of adjustments employers would be expected to consider:
- Redeployment (to a new location or a new role). If the role is less senior the employee’s salary can be reduced. Preserving the existing pay rate could also be seen as a reasonable adjustment. Where the change is incompatible with the employment contract, the employee is entitled to refuse the change. Any adjustments will not be effective without the employee’s consent.
- Changing the disabled employee’s working hours. In this case the employee’s salary can be reduced to reflect the reduced hours. But, consent is required.
- Time off for treatment or rehabilitation. This is a commonly requested adjustment. Whether the disabled employee receives his or her pay for time off will depend on what is reasonable in the particular circumstances. Additional considerations include whether employees are usually paid for time off work to attend medical appointments and for sickness absence. The amount of time off the disabled employee requires and the cost of this time is another factor.
Reasonable adjustments the employer is expected to pay for
There are various expenses that the employer is expected to foot. For example:
- The provision of training;
- Acquiring / modifying equipment or manuals;
- Providing assistance in the form of readers or interpreters; and
- Adapting the workplace for disabled access.
The duty to make reasonable adjustments exists throughout the employment. There may be more than one set of adjustments required.
Requests for adjustments made by a disabled person can be declined
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.
Where no reasonable adjustments can be made
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.
Step 3 – Managing employees who are not disabled
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.
Adjustments that impact upon other employees
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.