Employers are under a duty to make reasonable adjustments to help disabled job applications, employees and even former employees in certain circumstances.
When Is The Duty To Make Reasonable Adjustments Triggered?
The duty to make reasonable adjustments is imposed on employers by Section 20 and Schedule 8 of the Equality Act 2010. The duty is triggered if an employee or job applicant meets the definition of disability set out in the Equality Act 2010 and is placed in a substantial disadvantage because of:
- An employer’s provision, criterion or practice (PCP)
- A physical feature of the employer’s premises
- An employer’s failure to provide an auxiliary aid.
Section 6(1) of the Equality Act 2010 provides that a person is disabled if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The duty to make reasonable adjustments is unique to the protected characteristic of disability. Where the duty arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that person’s disadvantage. The purpose of this duty is to eliminate barriers that might stop disabled individuals participating in work.
However, an employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.
Although the legislation refers to the disabled person being at a substantial disadvantage, that is not a particularly high bar. The disadvantage may be something that is simply more than minor or trivial.
What Is ‘Reasonable’?
It is a common misconception that disabled individuals can ask for any adjustments they wish. However, the employer is under a duty to do what is reasonable and not any more. An employment tribunal will objectively determine whether a particular adjustment would have been reasonable to make in the circumstances, taking into account whether the adjustment would have ameliorated the disabled person’s disadvantage, the cost of the adjustment in the light of the employer’s size and financial resources and any disruption that the adjustment would have had on the employer’s activities.
What Is A Provision, Criterion or Practice?
Provision, criterion or practice (PCP) is not defined in the legislation, but is to be construed broadly to achieve the legislation’s aim of eliminating or reducing disadvantage to those with disabilities. It includes any formal or informal practices, policies and arrangements and may even include one-off decisions or actions.
What Is Meant By Physical Feature?
Physical features include any feature of a building arising from its design or construction, access to a building, or a fixture, fitting, furniture, furnishings, equipment or other items in or on the employer’s premises. If a physical feature causes any disadvantage it may be reasonable to remove or alter it, for example, it may be reasonable to install a ramp for wheelchair access to and from the building.
What Is An Auxiliary Aid?
An auxiliary aid is something which provides support or assistance to someone with a disability, for example adapted keyboards or voice activated software.
Disability Related Absences
It is not uncommon for those with disabilities to have increased levels of sickness absence. Of course this depends upon the nature of the disability. An employer does not have to completely ignore disability related absences when managing the absence of disabled employees. However, greater care should be taken before any disciplinary action is taken as it is possible that adjustments can be made to reduce any disadvantage to a disabled employee. Employers are wise to refer the disabled employee for an occupational health assessment to determine whether any adjustments could be made to help an employee to return to and remain in work. The employer may also consider adjustments to, or a relaxation of, trigger points to disciplinary action.
Employees No Longer Able To Carry Out Their Job
An employee may develop a disability or it may worsen to the point they are no longer able to do the role for which they are employed. An employer should look at whether there are any other suitable roles for the employee and, if necessary, offer those roles to the employee over other non-disabled candidates. However, an employer won’t be required to create a new role where no suitable vacancy otherwise exists.
Lincs Law Employment Solicitors Can Help You
If you are an employee whose employer has failed to make a reasonable adjustment or you are an employer seeking guidance on reasonable adjustments please contact us for a free enquiry. Simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help.
Kathryn Bolton
Associate
Specialist Employment Law Solicitor
Lincs Law Employment Solicitors
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