The Duty to Make Reasonable Adjustments [Video]

Posted in : Back to Basics on 16 June 2016
Gareth Walls
A&L Goodbody LLP
Issues covered:

We are very frequently asked by employers, really what is a reasonable adjustment, what is it, when do we need to do it, and what does it constitute? So it's fair to say it's a very vexed and very complex question for employers in Northern Ireland.

The way I'm going to deal with that now, I'm going to talk briefly about what the duty actually is. We're going to look at who is a disabled person. We're going to look at what a reasonable adjustment actually is. How long does the duty last for, and we're going to consider what other related applications the obligation to make a reasonable adjustment has within the workplace.

Going right back to what the duty actually is and where it comes from is a fairly difficult point but it needs to be well understood. It comes from an EU Equal Treatment Directive, which is interpreted into GB law initially, by the Disability Discrimination Act 1995 which has direct application in Northern Ireland.

Now, some of the commentary that people can find is a little bit confusing in this because the Equality Act in 2010 applies in GB, doesn't apply in Northern Ireland, and consequently repealed the DDA or the Disability Discrimination Act 1995, within GB.

Given that the vast majority of the commentary someone will find in relation to reasonable adjustments, is based upon the Equality Act 2010, it's very important for practitioners in Northern Ireland to realize that our scope and our source for this remains the Disability Discrimination Act 1995.

Nevertheless, I'm going to talk for the rest of this session in relation to Northern Irish Legislation. But the principles both in the DDA, and in the Equality Act 2010 dealing with this issue, are largely similar.

So the duty then is to make a reasonable adjustment to three categories broadly, disabled job applicants, disabled employees, and in certain circumstances to former employees, and we're going to look at that in a little bit more detail.

So when does a reasonable adjustment, or the duty to consider it, come into play? Well, the legislation has fairly settled in this now. It concludes that if the individual, on either of those three categories, is placed at a substantial disadvantage by, for example, a provision, criterion, or practice, in legalese that's a "PCP". Where there is a physical feature of the premises which puts them at a disadvantage and there's a need to make a reasonable adjustment or indeed, if there's a failure to provide what we term an auxiliary aide.

Now to give a little bit of commentary on that and an example to each, a PCP may well be where an employer operates a car-parking pass only for senior management. Now, if we have an individual who is physically impaired, it may be a reasonable adjustment for the employer to provide a car parking space for that individual as well, regardless of seniority.

In terms of the physical feature of the premises, that's probably more well understood. Certainly access, physical access to premises, has changed and has been with us for some time with ramps in terms of access, better awareness of lifts and ramps within the building as opposed to simple mere access to the building externally.

But there are much other, more subtle, physical features of premises which we might need to consider. For example if we have a member or staff who either is on recruitment or becomes visually impaired, then the predominance for glass within a workplace can make it a very, very difficult place to work, where we have glass walls, or large glass doors, that can cause an obvious problem for individuals in that category.

Equally and the third aspect to this is in terms of the failing to provide an auxiliary aide. Well what is an auxiliary aide? Bearing in mind that each case will turn on its own facts, an employer will need to make an analysis of what the individual's needs are but that may be as simple as an adapted keyboard. It may be for example some braille, in relation to access certain signage, but as I say, that needs to be assessed on a case by case.

But is there always an obligation and a duty to make a reasonable adjustment? Well actually, no. There's no duty imposed upon the employer, if the employer does not know or could not reasonably have known if an individual is disabled within the meaning of the Act.

Frequently, the obligation is on the individual to raise the fact that they are disabled and frequently, that will be identified on the job application form. So the employer's obligation is, in each case, to keep an eye on the job application form, to see what changes or reasonable adjustments, if any, need to be made to facilitate the job application, and indeed, to facilitate the applicant if successful. Not just through appointment, but through induction, through training, and through the entire life cycle of the employment.

That should be kept under review. An individual does not necessarily, in all cases, become disabled within the meaning of the act overnight. Frequently, disabilities can be temporary but nevertheless and while we'll look at that in a moment, my point is this.

The employer's obligation is to keep the individual, and the ability of the individual, under review in the same way that we may conduct a riddor assessment or a risk assessment if one of our employees becomes pregnant. i.e., we would not necessarily have made certain changes to the individual's situation on point of recruitment. But as they move through their employment life cycle with us, it may be that we need to make adjustments to the workplace.

So let's give some examples of what a reasonable adjustment might be. Premises is probably the easiest one. We've talked about lifts, ramps. That can also be door widening for example. There's lots of guidance out there, particularly in Northern Ireland, with the Health and Safety Executive, lots of guidance with the Equality Commission, and every employer should use those resources as often and as frequently as they can.

It may be in relation to making reasonable adjustment for access to information. For example, information should be in a more accessible format depending on the nature of the disability. It may be that signage needs to be larger. It may be that signage needs to be in braille. You tend to see that frequently within the workplace, but nevertheless, whenever workplaces are refurbished, etc., there needs to be a constant re-evaluation of necessity.

A reasonable adjustment on an individual case may well be a reallocation of duties. Equally, it may be something as simple as flexible hours. Keeping a good relationship with the employee is critical to understanding what a reasonable adjustment is, and making it.

Case law has also indicated that a reasonable adjustment may well be the transfer of that individual to fill an existing vacancy within the workplace, even if the existing vacancy is for a slightly higher pay grade, or may require a recruitment process which other employees do not have to follow through. That may seem, to a degree, inequitable but that is one of the issues in relation to the interrelationship between equality legislation generally, and all other employment principles.

There will always be some degree of friction between certain approaches to the law, but nevertheless, as I always say, each case turns on its own facts. The employer's obligation in each circumstance is simply to consider it and come up with a reasonable and objectively justifiable decision.

What is also clear and is worth saying though, is that a reasonable adjustment does not go so far as to necessarily create an entirely new role. Yes, we may have to reallocate duties. Yes, we may transfer the individual to an existing vacancy elsewhere in the organization. But case law does not require the employer to create something entirely new to facilitate that employee.

Now that may still leave the employer with some real difficulty as to what to do in that circumstance but I think that is still, nevertheless, a very important distinction to be made.

Look, to conclude, we need to remember that each case will turn in its own facts and the obligation of the employer is only to do what is reasonable and objectively justifiable in the circumstances.

On that point also consider, is the duty to make the reasonable adjustment permanent? Not necessarily. Disability in the context of the law, i.e. within the meaning of the Disability Discrimination Act 1995 as it applies in NI, can allow for individuals to be temporarily disabled within the meaning.

So yes, there will be some physical changes which are permanent in terms of access for goods and services which are made to the building. But some of the more individual reasonable adjustments made, which we have talked about, can be done and made on a temporary basis.

This article is correct at 16/06/2016

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Gareth Walls
A&L Goodbody LLP

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