Deborah Franks looks at the duty on employers under the Equality Act 2010 to make reasonable adjustments for disabled people. In particular, she considers when the duty applies and how far it extends
Clauses 3, 4 and 5 of section 20 of the Equality Act impose a duty on employers (referred to as “A” in the legislation) to make reasonable adjustments.
The duty consists of the three following requirements:
- “(3) 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 to avoid the disadvantage.
- (4) 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 to avoid the disadvantage.
- (5) 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 take to provide the auxiliary aid.”
Section 21(1) adds that a failure to comply with the first, second or third requirement is a failure to comply with the duty to make reasonable adjustments.
Provision, criterion or practice
Employers are under a duty to make reasonable adjustments if a provision, criterion or practice (PCP) and / or any physical features of their premises cause a substantial disadvantage for a disabled person in comparison with people who are not disabled.
In addition, the Act requires employers to take reasonable steps to provide disabled people with an auxiliary aid if they would be at a substantial disadvantage without it.
PCPs include formal and informal policies, practices and procedures and one-off decisions such as refusing to allow an employee to work from home. A physical feature includes the design of buildings such as exits and entrances, furniture, fixtures and fittings.
Some examples of features that could cause a substantial disadvantage to a disabled person include lighting that is too dim for someone with restricted vision, doors too narrow for wheelchair users or a work start time that causes problems for anyone with a mobility restriction.
Auxiliary aids include adapted keyboards, text to speech software, the provision of a sign language interpreter and a support worker.
The duty to make a reasonable adjustment applies to contract workers (not just employees), the agency that supplies them as well as the host employer. If a disabled worker signs on with an agency that finds work for them with another employer, both the agency and the employer are under a duty to make reasonable adjustments.
Reasonable steps employers have to take
The duty to make reasonable adjustments means that employers have to take certain steps to avoid a disadvantage or provide an auxiliary aid.
When deciding whether it’s reasonable to take those steps, employers need to take certain factors into account.
The code of practice published by the Equality and Human Rights Commission (EHRC) states that, whether a particular adjustment is reasonable will depend on:
- whether taking any particular steps 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 (such as advice through the government’s Access to Work agency)
- the type and size of the employer.
The code gives examples of reasonable steps that employers might have to take, such as:
- altering working hours
- allowing time off for rehabilitation or treatment
- allocating some of the disabled person's duties to someone else
- transferring the disabled person to another vacancy or another place of work
- giving or arranging training for the disabled person or others
- providing a reader or interpreter
- acquiring or modifying equipment or reference manuals
- adjusting the premises
- providing supervision or other support.
The code also suggests that making disability leave adjustments to redundancy selection criteria, modifying disciplinary and grievance procedures and performance-related pay arrangements amount to a reasonable adjustment.
Given that the courts found, under the Disability Discrimination Act (which preceded the Equality Act), that these do not always amount to a reasonable adjustment, it remains to be seen how tribunals will apply the duty when taking the code into account.
In any case, employers will need to consider the duty to make a reasonable adjustment carefully before making a decision to dismiss.
In Fareham College -v- Walters (weekly LELR 131) the Employment Appeal Tribunal held that a decision to dismiss a disabled employee can amount to a failure to make a reasonable adjustment if the employer could have made an adjustment, such as a phased return to work or transferred them to another job, which would have avoided the dismissal.
In Aylott -v- Stockton on Tees (weekly LELR 187) the Court of Appeal held that it may be a reasonable adjustment not to dismiss an employee.
Tribunals decide whether a step is reasonable on an objective basis, relying on factors such as the effectiveness of the adjustment, the practicability of carrying it out, its cost and the financial resources and size of the employer. And if a tribunal deems an adjustment to be “reasonable”, employers cannot justify a failure to make it.
In Archibald -v- Fife Council (LELR issue 92), the House of Lords gave a very wide meaning to reasonable adjustments, holding that the claimant (who could no longer do her job) should not be required to go through competitive interviews if she could show she was qualified and suitable to fulfil an existing vacancy.
There is no obligation on the disabled worker to identify the reasonable adjustment, nor to prove that it will remove the disadvantage
However, tribunals are likely to find that it would not be reasonable to expect an employer to make an adjustment if it would not benefit the disabled employee at all.
Knowledge of the disability
The duty to make reasonable adjustments only applies when the employer either knows or reasonably ought to know of the disabled person's disability. So, for example, if an occupational health report indicated that an employee was disabled without explicitly saying so, the employer would be deemed to have knowledge of their disability.
Having said this, the employee would then have to show that the disability was likely to put them at a substantial disadvantage. For example, if an employer interviews a job applicant who they know has dyslexia but does not make reasonable adjustments, they will not necessarily breach the duty if they can show that they were not aware dyslexia could have a substantial effect on the person’s ability to take part in the interview.
Difficulties often arise when a disabled person is not able to meet certain performance standards. Unfortunately, case law to date indicates that tribunals are unlikely to find that it is a reasonable adjustment to amend performance standards.
Likewise, tribunals have held that an employer did not fail to make a reasonable adjustment when they did not:
- carry out a risk assessment
- consult about adjustments
- pay full sick pay and
- obtain up to date medical evidence.
However, in a case in which the worker has a less familiar disability, such as Asperger’s Syndrome, it is likely that failing to obtain expert evidence may amount to a failure to make a reasonable adjustment.
Nor will employers be held to have treated a disabled worker less favourably by taking into account a disability-related absence (Royal Liverpool Children’s NHS Trust -v- Dunsby).
Cost of reasonable adjustments
The cost of making an adjustment is, not surprisingly, a relevant factor for a tribunal to take into account, as was highlighted in the case of Cordell -v- Foreign and Commonwealth Office (weekly LELR 246).
The EAT agreed with the tribunal that it would not be reasonable for the employer to have to pay upwards of £249,500 per annum for lip speakers to enable the claimant (who was deaf) to take up a diplomatic posting.
It held that there was no objective measure for balancing the disadvantage to the employee if adjustments were not made and the cost of making them, adding that tribunals must make a judgment, on the basis of what they consider right and just.
Considerations could include the size of any budget dedicated to reasonable adjustments; what the employer has spent in comparable situations; what other employers are prepared to spend; and any collective agreements.
However, these were simply indications of what was reasonable as there was no objective measurement to calculate the value of one kind of expenditure against another.
Employers cannot pass cost to employee
Section 20(7) of the Equality Act makes clear that the person required to make a reasonable adjustment is not entitled to require the disabled person to pay for the cost of complying with the duty, although the rule is modified for partnerships as partners share the costs of the firm.
This does not necessarily mean that employers have to bear the cost on their own, as grants are available from government-funded schemes such as Access to Work.