Duty to make reasonable adjustments

The EA imposes a duty on employers to make reasonable adjustments in the following situations:

• Where a provision, criteria or practice (PCP) applied by the employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled.  The employer must take reasonable steps to avoid the disadvantage. 

• Where a physical feature of the employer’s premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled.  Again, the employer must take reasonable steps to avoid the disadvantage. 

• Where a disabled person would, but for the employer’s provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled.  The employer must then take reasonable steps to provide the auxiliary aid.

A disabled person is not entitled to a reasonable adjustment simply because he/she is disabled. He/she must be put at a substantial disadvantage by a PCP or physical feature of the premises or lack of auxiliary aid, compared to non-disabled persons. The reason for the comparison is to establish whether it is because of the individual’s disability that he/she is put at the disadvantage. The purpose of the adjustment is to address that disadvantage.

The phrase PCP also comes up in the context of indirect discrimination. It covers almost anything the employer does which affects the individual at work, e.g. applying attendance policies; selection criteria for recruitment and redundancy, and imposing job duties/deadlines.

What could be an adjustment?

A physical feature of the premises can be temporary or permanent and includes internal and external features such as steps, exits, toilets, lifts, lighting and furniture. An auxiliary aid is something which provides support or assistance to a disabled person.

Reasonable adjustments should be made in a timely fashion. If there is undue delay in making the adjustments, it can often lead to a breakdown in the working relationship, and could if sufficiently serious amount to a fundamental breach of the implied term of mutual trust and confidence.

Failure to make a reasonable adjustment can never be justified.  It is for the tribunal to decide, using an objective test, whether it considers that the adjustment would have been reasonable. The employer is not required to make reasonable adjustments if it does not know and cannot reasonably be expected to know that:

• the individual has a disability, and

• the individual is likely to be placed at a substantial disadvantage as a result.

Knowledge of disability

It is therefore prudent for an individual to inform his/her employer clearly in writing that he/she is disabled and any adjustment(s) he/she thinks may help. This will frequently be in the form of a letter from a medical practitioner or a Occupational Health referral. However, as the duty to make reasonable adjustments falls on the employer, if the disabled individual has discussed with the employer the nature and effect of his/her disability, the employer should then explore the possibility of reasonable adjustments with the individual (and potentially with the assistance of an occupational health specialist), even if the individual did not make any such suggestions.

The Code, at paragraph 6.33 makes suggestions with examples as to the type of steps which employers may have to make. When advising an employer in practice, it is recommended to review these suggestions, in addition to obtaining occupational health advice.

The duty on an employer to make reasonable adjustments for a disabled applicant, worker or employee necessarily involves giving that individual more favourable treatment, i.e. a measure of positive discrimination.  This is necessary to remove the disadvantage which is attributable to the disability. This is indeed the intention of the EA and it is important for employers to be aware that it is not direct discrimination for an employer to treat a disabled person more favourably than it treats or would treat a non-disabled person (s.13(3) EA).

Reasonableness of adjustments

An employer will not breach the duty to make adjustments unless it fails to make an adjustment which is “reasonable”. This is an objective test and will depend on the circumstances of the particular case.  The following factors are listed in the Code as factors which might be taken into account when deciding the reasonableness of the steps taken (or not taken):

• Whether taking 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 type and size of the employer

• The availability of external financial or other assistance

Failure to make reasonable adjustments

In the event the employer fails to comply with its duty to make reasonable adjustments, the individual can bring a claim under s.21(2) EA.  The usual time limit of three months, subject to the EC procedure, applies.  As the act complained of in such a claim is a failure to do something, the time runs from the end of the period in which the employer might reasonably have been expected to comply with the relevant duty (assessed from the employee’s point of view), or the date of the actual decision not to comply with the relevant duty if relevant.