September 2016: The Employment Appeal Tribunal (EAT) has held that an employment tribunal was entitled to find that an employer was required, as a reasonable adjustment, to continue employing a disabled employee in a more junior role involving less physical activity, preserving his existing rate of pay on an indefinite basis.
While it will not be an “everyday event”, the EAT held that there was no reason in principle why pay protection, in conjunction with other measures, could not be a reasonable adjustment as part of a package of measures to get an employee back to work. Whether it was reasonable for the employer to have to take that step was a separate question, to be determined in the particular circumstances.
June 2016: Employers should take note of an Employment Appeal Tribunal (EAT) decision which acknowledges that workplace culture, involving a mixture of spoken and unspoken rules, can make people feel obliged to work in a particular way, even if is disadvantageous to their health.
The EAT held that an expectation for a disabled employee to work long hours amounted to a provision, criterion or practice (PCP) for the purposes of a disability discrimination claim based on a failure to make reasonable adjustments. The employer’s expectation, in this instance initially communicated as a request for the employee to work long hours, then based on an assumption that he would do so, was sufficient to constitute a PCP.
April 2015: Employers dealing with persistent short-term absences and difficult employees will be reassured by a recent Employment Appeal Tribunal (EAT) decision. It confirms that an employer does not need to have taken every step possible to discover an employee’s disability to avoid having constructive knowledge of it. It is an employer’s actions as a whole that matter. However, it also confirms that each case will be determined by its facts, so no hard and fast rules can be established.
February 2015: 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. An EAT case 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 EAT 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 business briefing explains 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)
The content of this Business Briefing is for information only and does not constitute legal advice. It states the law as at September 2016. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this briefing.