Disability

by Kate Russell

Reasonable adjustments

As an employer, you are under a specific duty to make reasonable adjustments to accommodate the needs of a disabled employee. A reasonable adjustment is any step or steps that you can reasonably take to ensure that existing workplace arrangements don’t put the disabled person at a disadvantage in comparison with a non-disabled person.

The duty applies where any physical feature of premises occupied by the employer, or any arrangements made by or on behalf of the employer, cause a substantial disadvantage to a disabled person compared with non-disabled people.

Some examples of adjustments – by no means an exhaustive list – are given below.

Making adjustments to premises

An employer might have to make structural or other physical changes: for example, widening a doorway; providing a ramp or moving furniture for a wheelchair user; relocating light switches, door handles or shelves for someone who has difficulty in reaching, or providing appropriate contrast in decor to help the safe mobility of a visually impaired person.

Allocating duties to another person

Some duties might be reallocated to another employee if the disabled person has difficulty in doing them because of the disability. For example, if a job occasionally involves going onto the open roof of a building, an employer might have to transfer this work away from an employee whose disability involves severe vertigo.

Transferring the person to fill an existing vacancy

For example, if an employee either becomes disabled or has a disability which worsens so he cannot work in the same place or under the same arrangements and there is no reasonable adjustment which would enable him to continue doing the current job, then he might have to be considered for any suitable alternative posts that are available. Such a case might also involve reasonable retraining.

Example

A was a road sweeper for Fife Council. After surgery, she suffered complications and as a result was virtually unable to walk. She was accepted as disabled for the purposes of DDA.

She retrained and applied unsuccessfully for over 100 sedentary jobs. The council operated a competitive interviewing system. A was never the best candidate for the job. Eventually she was dismissed for incapacity. Her disability discrimination claim was unsuccessful at the employment tribunal, EAT and Court of Session, and she appealed to the House of Lords.

The Lords allowed her appeal. It was held that the terms, conditions and arrangements relating to the essential functions of her employment were ‘made by the employer’ within the meaning of the DDA. As a result, A was disadvantaged compared with staff who were not disabled, as she was at risk of dismissal. Where an employee becomes incapable of performing the duties of his job, the employer must make reasonable adjustments. In certain circumstances, this could require an employer to transfer a disabled employee to an existing post at a slightly higher grade without requiring him to undergo competitive interviewing.

A positive duty to make reasonable adjustments was therefore triggered. It may have been reasonable for the council to automatically transfer her to an existing post at a slightly higher grade, despite not necessarily being the best person for the job.

This goes beyond what was previously considered a ‘reasonable adjustment’ under the DDA.

In some cases, it may be reasonable to put a disabled employee into a role already occupied by another employee.

Example

PC Jelic was diagnosed with chronic anxiety syndrome. He had been removed from front-line duties and was assigned to a non-public-facing role in 2004 until his retirement in 2008. The role later evolved to require contact with the public, and he was no longer considered suitable for it. Without warning, he was asked to attend a meeting to discuss his ‘medical retirement’, which subsequently led to the decision by the Chief Constable to retire PC Jelic with an ill-health pension. Following this report, the claimant’s medical retirement was approved without any further consideration of what reasonable adjustments could be made.

PC Jelic raised claims for disability-related discrimination and discrimination by reason of a failure to make reasonable adjustments.

His claim for unlawful disability discrimination was upheld by an employment tribunal. It held that the employer had not complied with its duty to make reasonable adjustments, due to its ‘spectacular failure to consult’ with the employee. While it accepted that the claimant could not remain in his existing role, the tribunal considered that a reasonable adjustment would have been to redeploy the claimant into a non-public-facing police officer role. This would have meant the claimant swapping roles with another police constable who was carrying out a role more suited to the restricted duties of the claimant. While this went beyond one of the examples of a reasonable adjustment set out in the legislation (of transferring to fill an existing vacancy), in the context of a ‘disciplined service’ in which the relevant police constable could be ordered to move, it was a reasonable adjustment. An alternative would have been to offer new employment in a (civilian) staff role, following the claimant’s medical retirement.

The Jelic case does not mean that employers will always have to consider swapping employees, although it could be appropriate in certain cases. It is notable that in this case, the nature of the employment meant that the employer could (and regularly did) order police officers to change roles.

Altering working hours

For example, this could include allowing the disabled person to work flexible hours to enable additional breaks, allowing him to overcome fatigue arising from the disability, or changing the disabled person’s hours to fit with the availability of a carer.

Assigning the person to a different place of work

For example, this could mean transferring a wheelchair user’s work station from an inaccessible third floor office to an accessible one on the ground floor. It could mean moving the person to other premises of the same employer, if the first building is inaccessible.

Allowing absence

It may be necessary to allow the person to be absent during working hours for rehabilitation, assessment or treatment. For example, if a person were to become disabled, the employer might have to allow that person more time off during work than would be allowed to non-disabled employees, enabling them to receive physiotherapy or psychoanalysis or undertake employment rehabilitation. A similar adjustment might be appropriate if a disability worsens or if a disabled person needs occasional treatment anyway.

Training

It may be necessary to give the person, or arrange for him to be given, training. This might be training in the use of particular pieces of equipment unique to the disabled person, or training appropriate for all employees but which needs altering for the disabled person because of the disability. For example, all employees might need to be trained in the use of a particular machine, but an employer might have to provide slightly different or longer training for an employee with restricted hand or arm movements, or training in additional software for a visually impaired person so that he can use a computer with speech output.

Acquiring or modifying equipment

An employer might have to provide special equipment, such as an adapted keyboard for a visually impaired person or someone with arthritis, or an adapted telephone for someone with a hearing impairment, or modified equipment (for example, longer handles on a machine).

There is no requirement to provide or modify equipment for personal purposes unconnected with work, such as providing a wheelchair if a person needs one in any event but does not have one. The disadvantage in such a case does not flow from the employer’s arrangements or premises.

Modifying instructions or reference manuals

For example, the way instruction is normally given to employees might need to be revised when telling a disabled person how to do a task. The format of instructions or manuals may need to be modified (perhaps produced in braille or on audio tape) and instructions for people with learning disabilities may need to be conveyed orally and with individual demonstration.

Modifying procedures for testing or assessment

This could involve ensuring that particular tests do not adversely affect people with particular types of disability. For example, a person with restricted manual dexterity might be disadvantaged by a written test, so an employer might have to give that person an oral test.

Providing a reader or interpreter

For example, this could involve a colleague reading mail to a person with a visual impairment at particular times during the working day or, in appropriate circumstances, the hiring of a reader or sign language interpreter.

Providing supervision

For example, this could involve the provision of a support worker, or help from a colleague, in appropriate circumstances, for someone whose disability leads to uncertainty or lack of confidence.

What is reasonable will depend on the facts, but the courts tend to take a broader view of what constitutes reasonable than many employers might do.

Payment for treatment. In Croft Vets Ltd and Others v Butcher [2013] Ms Butcher suffered from work-related stress and severe depression. Her medical advisor recommended that her employer pay for her to have cognitive behavioural therapy and further psychiatric sessions in an effort to optimise her treatment. They did not so do. Ms Butcher successfully argued that it was reasonable for her employer to pay for her treatment and by failing to do so they had failed to make reasonable adjustments. The issue was not the payment of private medical treatment in general, but, rather, payment for a specific form of support to enable the claimant to return to work and cope with the difficulties she had been experiencing at work.

Guaranteed car parking space. In Environment Agency v Donnelly [2013] the employee, Ms Donnelly, suffered from osteoarthritis and spondylitis. This affected her knees, back and hip. She was entitled under her contract to work flexi-time hours, which meant she could arrive at work any time before 10.00am. The office’s main car park generally had spaces at 9.00am but it was usually full by 9.30am. Ms Donnelly generally arrived at work at 9.30am; by which time the car park was full. There was an overflow car park, which was an extra ten minutes’ walk away. Ms Donnelly claimed that it would have been a reasonable adjustment for her to have been allocated a car parking space in the main car park so that she would not have to walk the extra distance. The employer argued that it was open to Ms Donnelly to come to work at 9.00am and leave work earlier. Alternatively, she was offered an arrangement by which she could get lifts to and from the more distant car park; or could use a disabled space provided she moved her car if a badge holder needed it. A report from an ergonomic expert noted that walking from a parking location other than the main car park was problematic. The report specifically recommended a suitable parking space onsite.

Ms Donnelly successfully claimed failure to make reasonable adjustments. The employer had applied a provision, criterion or practice that she had to walk from a distant car park and she had suffered a significant disadvantage because of it. The employer had failed to make reasonable adjustments. Ms Donnelly had the right under her contract to come into work at any time within the flexi-time arrangements. It was not for her, but for the employers, to make reasonable adjustments.

Reasonable adjustments – impact on pay

In most situations where employees reduce their hours or take a lesser role as a reasonable adjustment, case law has suggested that the duty to make reasonable adjustments does not usually extend to pay related matters.

Such matters are always fact-dependent and in the following case the EAT said that there was no reason in principle why pay protection, in conjunction with other measures, could not be a reasonable adjustment.

Example

Mr Powell worked for GCSU Ltd as an engineer responsible for maintaining cash machines. He developed back problems and, by 2012, was having problems with lifting and working in small spaces. He started work in a newly created role of ‘key runner’, driving from GCSU Ltd’s depot to deliver parts and keys to its engineers. He continued to receive his original engineer’s salary for the key runner role and understood this to be a long term arrangement.

In May 2013 GCSU Ltd told Mr Powell that the role was not permanent. It gave him a list of alternative vacancies to consider, stating that if none was suitable he might be dismissed on medical grounds. Mr Powell raised a grievance about what he considered to be an attempt to change his terms and conditions. GCSU Ltd responded by making the key runner role permanent, but at a lower rate of pay. Unwilling to accept a 10 per cent pay reduction, Mr Powell was dismissed and brought tribunal proceedings.

The tribunal rejected Mr Powell’s claim that his contract of employment was varied when he began the key runner role, to the effect that he was entitled to continue in that role at his original salary on a permanent basis. However, it also decided that GCSU Ltd was required, as a reasonable adjustment, to employ Mr Powell as a key runner at his original rate of pay. GCSU Ltd appealed against this finding and Mr Powell appealed on the contractual variation point.

The EAT held that the tribunal had made its decision on the assumption that an employer can impose a variation without agreement when making a reasonable adjustment. That was not correct – if an employer proposes an adjustment which cannot be reconciled with the terms of the employment contract, the employee is entitled to refuse it and the adjustment will not be effective unless and until there is a clearly agreed variation. In this case there was a lack of clarity about key issues such as how long the new role was to last and there was no clear variation as a result.

The EAT also held that there was no reason in principle why the duty to make reasonable adjustments should exclude a requirement to protect an employee’s pay. The question will always be whether it is reasonable for the employer to have to take a particular step with a view to meeting the purpose of the reasonable adjustments duty which is getting an employee back to work or keeping the employee in work. Some adjustments, such as extra training or support, may involve cost to the employer and pay protection is simply another form of cost.

Properly consider medical advice

Where you take medical advice and the doctor or OHA makes recommendations as to reasonable adjustments, you should take the advice unless it’s unreasonable or perverse to do so.

Example

Ms Bannister was asked to move desk from one floor to another because her team was being disbanded. She told one of her managers that she was an alcoholic and that due to her condition, she could not move desks. Following a conversation with a manager, the manager noted that she apologised that she had turned a small change like a desk move into a big issue.

An Occupational Health Adviser (OHA) told the employer that Ms Bannister had suffered from depression for about three years and had become anxious when asked to move desk, but said that she was fit to work. The report said that Ms Bannister ‘remains vulnerable to further episodes of this condition, the frequency or severity of which cannot be predicted’ and that her ‘condition is likely to be considered as disabilities because they have lasted for longer than 12 months and would have significant impact on normal daily activities without the benefit of treatment’.

Ms Bannister was issued a first written warning for poor attendance. She submitted several Fit Notes stating she was not fit to work because of alcohol dependency, anxiety and depression. After meetings with management, she was told she would be moving. Ms Bannister complained and was told by a senior manager ‘in fairness, he was not aware of issues around previous moves and, to be honest, he had no interest’.

In another letter by an OHA, the employer was told that Ms Bannister was ‘keen to return to work, however she needs to go back to where she was with her desk prior to the absence and that after a few days settling in she will be able to manage in work’. Her request to return to work with her old team for a short period of time before moving to her new team was declined.

She was dismissed and complained successfully that her employer had failed to make reasonable adjustments for her.

The Tribunal found that Ms Bannister required the ‘security of an established routine at the workplace and that any change posed a threat which unsettled her’. She was scared of drawing any attention to her and gave a number of examples of how she reacted to stressful situations, for example, she would not board a busy bus or join a queue with more than three people in the supermarket.

The requirement to work on a different floor caused a ‘serious unsettling effect’ on Ms Bannister and put her at a substantial disadvantage when compared to people who were not disabled. She wanted to return to work and would have done so but for this requirement to move desk and change floors.

The Tribunal noted that Ms Bannister had offered several adjustments including a phased return to work, a temporary reduction in hours, the elimination of performance targets and a lighter workload. However, they concluded that they had failed to make a reasonable adjustment by not allowing the employee to return to her original desk for two weeks. She was awarded over £73,000 compensation.

Cost and reasonable adjustment

Generally, cost will not be considered by the courts as sufficient good reason for failing to make an adjustment. The Code of Practice provides us with some guidelines, described below.

The practicability of the step

It is more likely to be reasonable for an employer to have to take a step which is easy to take than one which is difficult.

For example, it might be impracticable for an employer who needs to appoint an employee urgently to have to wait for an adjustment to be made to an entrance. How long it might be reasonable for the employer to have to wait would depend on the circumstances. However, it might be possible to make a temporary adjustment in the meantime, such as using another, less convenient entrance.

Cost and disruption

If an adjustment costs little or nothing and is not disruptive, it would be reasonable unless some other factor (such as practicability or effectiveness) made it unreasonable. The costs to be taken into account include staff and other resource costs. The significance of the cost of a step may depend in part on what the employer might otherwise spend in the circumstances.

For example, it would be reasonable for an employer to have to spend at least as much on an adjustment to enable the retention of a disabled person – including any retraining – as might be spent on recruiting and training a replacement.

The significance of the cost of a step may also depend in part on the value of the employee’s experience and expertise to the employer.

Examples of the factors that might be considered as relating to the value of an employee would include

  • The amount of resources (such as training) invested in the individual by the employer
  • The employee’s length of service
  • The employee’s level of skill and knowledge
  • The employee’s quality of relationships with clients
  • The level of the employee’s pay.

It is more likely to be reasonable for an employer to have to make an adjustment with significant costs for an employee who is likely be in the job for some time than for a temporary employee.

An employer is more likely to have to make an adjustment which might cause only minor inconvenience to other employees or the employer than one which might unavoidably prevent other employees from doing their job, or cause other significant disruption.

The extent of the employer’s financial or other resources

It is more likely to be reasonable for an employer with substantial financial resources to have to make an adjustment with a significant cost than for an employer with fewer resources. The resources in practice available to the employer as a whole should be taken into account, as well as other calls on those resources. The reasonableness of an adjustment will depend, however, not only on the resources in practice available for the adjustment, but also on all other relevant factors (such as effectiveness and practicability).

Where the resources of the employer are spread across more than one business unit or profit centre, the calls on them should also be taken into account in assessing reasonableness.

For example, a large retailer probably could not show that the limited resources for which an individual shop manager is responsible means it is not reasonable for the retailer to have to make an adjustment at that shop. Such an employer may, however, have a number – perhaps a large number – of other disabled employees in other shops. The employer’s expenditure on other adjustments, or his potential expenditure on similar adjustments for other existing disabled employees, might then be taken into account in assessing the reasonableness of having to make a new adjustment for the disabled employee in question.

It is more likely to be reasonable for an employer with a substantial number of staff to have to make certain adjustments, than for a smaller employer.

For example, it would generally be reasonable for an employer with many staff to have to make significant efforts to reallocate duties, identify a suitable alternative post or provide supervision from existing staff. It could also be reasonable for a small organisation covered by the act to have to make any of these adjustments, but not if it involved disproportionate effort.

The availability to the employer of financial or other assistance

The availability of outside help may well be a relevant factor. For example, an employer, in recruiting a disabled person, finds that the only feasible adjustment is too costly for him alone. However, if assistance is available, perhaps from a government programme or voluntary body, it may well be reasonable for him to have to make the adjustment after all.

A disabled person is not required to contribute to the cost of a reasonable adjustment. However, if a disabled person has a particular piece of special or adapted equipment which he is prepared to use for work, this might make it reasonable for the employer to have to take some other step (as well as allowing use of the equipment).

Note

Financial assistance can sometimes be made available. It’s useful to talk to the Department of Work and Pensions in the first instance for some guidance (www.dwp.gov.uk).

For example, an employer requires his employees to use the organisation’s cars for all business travel. One employee’s disability means he would have to drive his own car, which he is willing to use on business. In the circumstances, it might well be reasonable for the employer to have to allow this and pay him an allowance to cover the cost of doing so, even if it would not have been reasonable for him to have to provide an adapted car, or to pay an allowance to cover alternative travel arrangements in the absence of an adapted car.

Exemption to the duty to make reasonable adjustments

In Eastern & Coastal Kent PCT v Grey [2009] the court provided clarification of the test which, in certain circumstances, exempts employers from the usual duty to make reasonable adjustments. The duty to make adjustments does not apply if the employer does not know, and could not be reasonably expected to know, that the person has a disability and is likely to be placed at a substantial disadvantage. This case considered when an employer can rely on this exemption to avoid making adjustments.

  EXAMPLE

Mrs Grey is dyslexic and regarded as disabled for the purposes of the legislation. She claimed that Eastern & Coastal Kent PCT failed to make reasonable adjustments for her during an interview process. In her application form, she referred to her dyslexia, but said that she did not need any special arrangements to attend the interview. She did not perform well at the interview and was not offered the post. She complained that the PCT had failed to make reasonable adjustments.

The PCT argued that it did not know and ‘could not reasonably be expected to know’ that Ms Grey was at a substantial disadvantage in comparison with the other applicants. Therefore it did not need to make reasonable adjustments for her.

The court considered the circumstances in which the exemption might apply. To be exempt from the strict duty to make reasonable adjustment, the employer must demonstrate that it

  • Did not know that the disabled person has a disability, and
  • Did not know that the disabled person was likely to be at a substantial disadvantage compared with persons who are not disabled, and
  • Could not reasonably be expected to know that the disabled person had a disability, and
  • Could not reasonably be expected to know that the disabled person was likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

The EAT decided that for the exemption to make reasonable adjustments to apply, the employer must be able to satisfy each limb of the exemption because these are cumulative and not alternative requirements.