Disability Discrimination – Reasonable Adjustments

disability-discrimination

A large number of disability cases concern employees on long-term sickness absence and the steps that employers should take to help them to return to work. The recent case of Doran v Department for Work and Pensions UKEAT/0017/14 illustrates that, generally, for an employer’s duty to make adjustments to be triggered, there must be an indication that the employee might be fit to return to work at some point.

The Employment Appeal Tribunal has held that an employment tribunal was entitled to find that an employer’s duty to make reasonable adjustments was not triggered where a sick employee had not given any sign that she would be returning to work. The employee had given the impression that she would not be able to return any time soon, and her medical certificates continued to state that she was unfit for work.

This note seeks to explain what reasonable adjustments are in the context of disability discrimination and identifies when a business may need to make them.

What are the penalties for failing to comply with disability discrimination laws?

Discrimination legislation imposes a duty on businesses to make reasonable adjustments to premises or working practices where a disabled job applicant or employee is placed at a substantial disadvantage. Failing to comply with this duty is a form of disability discrimination. There is no limit to the amount of compensation that can be awarded for a successful disability discrimination claim.

When does the duty to make reasonable adjustments arise?

The duty can arise in three circumstances:

  • Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
  • Where a physical feature puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
  • Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with individuals who are not disabled.

What is a provision, criterion or practice?

The phrase “provision, criterion or practice” is wide ranging and includes:

  • Recruitment criteria.
  • Provisions in the employment contract.
  • Employment policies.
  • Informal practices.

What is a physical feature?

The physical feature must be part of the business premises for the duty to arise. For example:

  • Parking areas.
  • Toilet and washing facilities.
  • Building entrances and exits.
  • Furniture and temporary or movable items.

What is an auxiliary aid?

An auxiliary aid is something which provides support or assistance to a disabled person (for example, a specialist piece of equipment, such as an adapted keyboard or text to speech software).

What is a substantial disadvantage?

Discrimination legislation describes “substantial” as “more than minor or trivial”. It is a relatively low threshold and, therefore, an employment tribunal is likely to find it easy to conclude that a claimant suffered a substantial disadvantage. Whether an employee is placed at a substantial disadvantage depends on the individual facts of the situation.

Taking steps to identify disability

A business is not expected to make reasonable adjustments if it does not know, or could not reasonably be expected to know, that the disabled person has a disability and is likely to be placed at a substantial disadvantage. Reasonable steps should be taken to put a system in place to help the business identify whether individuals are disabled and at a substantial disadvantage. If a business should have known about a disability, for example if it would have been discovered from an occupational health assessment, then the duty to make reasonable adjustments will arise.

What is a “reasonable” adjustment?

Although each situation will be different, there are a number of factors which may be taken into consideration when deciding if the steps a business has taken were “reasonable”, including:

  • Whether the adjustment would actually solve the disadvantage identified.
  • The practicality of the adjustment.
  • The impact of the adjustment on the business as a whole.
  • The financial and other costs of making the adjustment.
  • The size of the business.

It is good practice for the business to ask the disabled person about possible adjustments. It is also advisable to agree any proposed adjustments with that person before they are made.

Adjustments a business may be required to make

The reasonable adjustments that a business may be required to make will depend on the facts of the individual situation. However, examples include:

  • Making adjustments to premises (for example, by widening a doorway or providing a ramp).
  • Providing information in accessible formats (for example, producing instructions and manuals in Braille or on audio tape).
  • Reinstatement (for example, reinstating an employee who resigned while depressed).
  • Transferring a disabled employee to a new role (for example, moving them to fill an existing vacancy).
  • Altering the disabled person’s hours of working or training (for example, permitting part-time working or different working hours to avoid the need to travel in the rush hour).

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