The duty to make reasonable adjustments

The most important part of the law against disability discrimination is the duty of employers to make reasonable adjustments. Basically, this means that where workers are disadvantaged by workplace practices because of their disability, employers must take reasonable steps by adjusting hours or duties, buying or modifying equipment or allowing time off, so that they can carry out their job.

The duty is set out in sections 20 and 21 of the EqA. Section 21 says that a failure to comply with the first, second or third requirement set out in section 20 is a failure to comply with a duty to make a reasonable adjustment.

Section 20(3) says: “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take in order to avoid the disadvantage.”

Section 20(4) says: “The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take in order to avoid the disadvantage.”

Under s20(9), this includes removing the physical feature, altering it or providing a reasonable means of avoiding it.

Section 20(5) says: “The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to provide the auxiliary aid.”

Under s20(7), employers are not allowed to require the disabled person to pay any of their costs in making the adjustment.

Provided an adjustment would be reasonable, an employer has no defense of justification for not carrying it out.

Employers are expected to act positively and constructively. In the key case of Archibald v Fife Council, 21 the House of Lords said:

“The DDA does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination.”

21 [2004] IRLR 651, HL

The ‘DDA’ has now become the EqA, but the point remains. The House of Lords’ use of the term “positive discrimination” is unfortunate. It is simply a case of removing unnecessary barriers, to place disabled people on an equal footing. However, it does illustrate how far employers must go.

Paragraph 6.33 of the Employment Code lists the following possible adjustments, giving an example for each. Previously most of these adjustments were written into the Disability Discrimination Act. It should not make any difference that they are now in the Code rather than in the statute.

• making adjustments to premises & providing information in accessible formats
• allocating some of the worker’s duties to another person
• transferring the worker to fill an existing vacancy
• altering the worker’s hours of working or training
• assigning the worker to a different place of work or training or allowing home working
• allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment
• allowing the worker to take a period of disability leave
• giving, or arranging for, training or mentoring (whether for the disabled worker or any other person)
• acquiring or modifying equipment
• modifying procedures for testing or assessment
• providing a reader or interpreter & providing supervision or other support
• employing a support worker to assist a disabled worker
• modifying disciplinary or grievance procedures
• modifying performance-related pay arrangements
• adjusting redundancy selection criteria
• participating in supported employment schemes such as Workstep

The Code points out that it may sometimes be necessary for an employer to take a combination of steps.

Where an employee becomes so disabled that s/he is no longer able to do his/her job at all, a reasonable adjustment may be to move him/her to another job, even at a slightly higher grade, without competitive interview. 22

An employer must not give priority to other categories of redeployee, eg those at risk of redundancy, over a disabled worker. 23

Paying full pay is a potential reasonable adjustment, where the worker is off sick because other reasonable adjustments have not been made. 24

In other circumstances, it will rarely be a reasonable adjustment to pay full pay for disability-related absence if there is no contractual entitlement.

22Archibald v Fife Council [2004] IRLR 652, HL
23Kent County Council v Mingo [2000] IRLR 90, EAT
24Nottinghamshire County Council v Meikle [2004] IRLR 703, CA

The duty is restricted to job-related matters and does not extend to:

• Providing a carer for a worker’s personal and toilet needs. However, there may be a duty to provide accessible toilets or accommodate a carer who the worker brings with him/her.25
• Providing transport to and from work (as opposed to assisting with travel while at work).25
• Offering ill-health retirement. 26

25Kenny v Hampshire Constabulary [1999] IRLR 76, EAT
26Tameside Hospital NHS Foundation Trust v Mylott UKEAT/0352/09 and 0399/10.

Where it is necessary to make adjustments to premises which are occupied under a lease, there are special rules enabling such adjustments to be made, even where the lease forbids it or the landlord unreasonably withholds consent. (See Employment Code, paragraph 6.26 and Appendix 3.)

How much must an employer do?

A tribunal will decide on the facts of each individual case how much the employer ought to have done by way of reasonable adjustment.

What kind of adjustments?

At paragraph 6.28, the Employment Code lists factors which a tribunal may take into account when deciding whether an adjustment would have been reasonable:

• whether taking any particular step would be effective in preventing the substantial disadvantage
• the practicability of the step
• the financial and other costs of making the adjustment and the extent of any disruption caused
• the extent of the employer’s financial or other resources
• the availability to the employer of financial or other assistance to help make an adjustment, eg advice from Access to Work
• the type and size of the employer.

These factors were previously set out in the Disability Discrimination Act.

The employer’s resources

A large employer with substantial financial resources is more likely than a small employer to have to make adjustments which are very expensive. If a shop or restaurant is part of a chain, the resources of the whole chain will be taken into account.

An employer cannot hide behind a set budget. All relevant factors will be considered in each case.

In fact, reasonable adjustments often involve little or no cost or disruption (see Employment Code, paragraph 6.25).

Available grants from the Access to Work Scheme

The Access to Work programme is administered through Jobcentre Plus and may provide grants towards the cost of various adjustments. Many employers are unaware of the existence of Access to Work.

Workers are eligible if they have a disability or health condition. It applies to any paid job or interview for that job, whether full-time or part-time, permanent or temporary. It does not matter whether they are already in a job or about to start.

The programme may provide a grant towards various adjustments including adapting premises; adapting or purchasing equipment; providing readers or interpreters; help with interviews and additional travel costs to work.

Usually the employer then purchases the equipment, etc and reclaims the grant from Access to Work.

There is no set amount that the Scheme will grant. Employers may be expected to make a contribution.

To get advice about the scheme and an assessment of the worker’s needs, the worker needs to fill in an application form and s/he will then be contacted by an Access to Work adviser. A Jobcentre Plus office, Disability Employment Adviser (see below) or Access to Work contact centre can give contact details. The adviser will then usually speak to the worker and to the employer on the telephone, and visit the workplace if necessary.

Once the Access to Work adviser has decided on the appropriate level of support, s/he gets formal approval from Jobcentre Plus. S/he then sends a letter to the worker and the employer setting out the available grant. It is the employer’s responsibility to buy the necessary equipment and reclaim approved costs from Access to Work.

For latest details on levels and eligibility for grants, it is important to check with an Access to Work Adviser.

It is hard to find details of Access to Work as it now operates on line and it is best to check direct with a Scheme adviser how it will operate in practice in the particular case.

What if the employer doesn’t know?

The employer is not under a duty to make reasonable adjustment if s/he does not know and cannot reasonably be expected to know that:

1. the worker has a disability and
2. the worker is likely to be placed at a substantial disadvantage as a result.

It is necessary that the employer was aware (or should have been aware) of facts which would satisfy the legal definition of a ‘disabled’ person, ie that the worker has an impairment which has a substantial and long-term adverse effect on his/her ability to carry out day-to-day activities. It is not necessary that the employer realises those particular facts meet the legal definition of disability.

For example, an employer knows that an employee is sleeping badly, frequently crying at work for no apparent reason, not eating and showing no enthusiasm for projects which she used to enjoy. This has gone on for over a year. It never occurs to the employer that the employee might be depressed or that she would be considered to have a disability under the law. However, a tribunal may later decide that those symptoms do amount to a legal disability and that, as the employer knew about them, the employer therefore had the necessary knowledge of disability.

The employer can rely on occupational health or other medical advice to provide the facts, eg to answer questions as to how long the adverse effects are likely to last. But the employer cannot just rely on a bald statement from occupational health that a worker is not disabled, especially where there are certain indications otherwise and where the employer has not asked for precise information from occupational health which keys into the wording of the definition. 27

27 Gallop v Newport City Council [2013] EWCA Civ 1583

The legal position is uncertain where HR or occupational health are aware of the facts, ie the worker’s disability and need for adjustments, but the actual decisionmakers, such as the worker’s managers, are not. The Employment Code (at paragraph 6.21) says if information is gained by an agent or employee of the employer, such as an occupational health adviser, HR officer or recruitment agent, the employer will not ‘usually’ be able to claim s/he does not know about the disability. One interpretation of the case-law is that an employer has the necessary knowledge where the occupational health adviser is part of the decision-making process because line managers rely on his/her recommendations. This is particularly so where the worker knows s/he has been asked to see occupational health in order to help his/her manager make a decision regarding the work situation. 28

28 Hartman v South Essex Mental Health and Community Care NHS Trust [2005] IRLR 293, CA (not a disability discrimination case) says that occupational health’s confidential knowledge of a worker’s health cannot be imputed to the employer, but arguably it can be distinguished from the more helpful L B Hammersmith and Fulham v Farnsworth [2000] IRLR 691, EAT, which was a disability discrimination case.

A worker is not generally obliged to tell an employer that s/he has a disability. But for the above reasons, if s/he needs adjustments to be made, s/he would be wise to tell the employer clearly in writing that s/he is disabled, the nature of the problem and any adjustment s/he knows would help.

Although an employer has a duty to make reasonable enquiries based on information given to him/her, there is no absolute onus on the employer to make every enquiry possible.

The Employment Code deals with the issue of knowledge at paragraphs 6.19 – 6.22. It gives as an example where an employer ought to ask questions to establish if a worker has a disability, if s/he keeps crying at work.

With regard to job applicants, the wording in the Equality Act is slightly different regarding the required knowledge. An employer is under no duty to make reasonable adjustments if s/he does not know and could not reasonably be expected to know that a disabled person was or might be a job applicant.

Note also:

• In the employment field, there is no open-ended duty to make adjustments, eg to provide all literature in different formats. The duty is owed to a particular worker or job applicant whom the employer knows has a disability and is likely to be disadvantaged.
• The duty to make reasonable adjustments also applies where the worker is a contract worker, eg employed by a contracted-out company or an agency. Obviously the reasonableness of any adjustment will be linked to how long the contract worker will be working for the principal.
• The tribunal will reach its own decision on what adjustments would have been reasonable. Unlike unfair dismissal law, for example, the tribunal should substitute its own decision for that of the employer as to what is reasonable.29 It is an objective test.
• When running a case, the worker must give at least a broad idea of what adjustments would have been useful, so that the employer knows what.

29Morse v Wiltshire County Council [1998] IRLR 353, EAT

allegation s/he has to meet. 30 The amount of detail which the worker needs to give to reverse the burden of proof depends on the nature of the disability. A subtle disability would require more than basic details. 31

• It is not essential that the proposed adjustment was identified at the time. It might not be identified until the tribunal case. In certain circumstances, eg with an unrepresented claimant, it may even be appropriate for the tribunal to raise the suggestion itself, as long as the employer has a proper opportunity of answering the point.32
• It is not necessary that a particular step is guaranteed to work or even that there is a good prospect of it working. It is enough if there is ‘a’ prospect of it working. But if the chances of it working were low, the worker may get less compensation from the tribunal.33

30Project Management Institute v Latif [2007] IRLR 579 EAT
31E A Gibson Shipbrokers Ltd v Staples UKEAT/0178/08 and 0179/08
32Project Management Institute v Latif [2007] IRLR 579 EAT
33 HM Prison Service v Beart [2003] IRLR 238, CA; Leeds Teaching Hospital NHS Trust v Foster UKEAT/552/10; Redcar and Cleveland Primary are Trust v Lonsdale UEAT/0090/12.