An Investigation into the Range of Reasonable Adjustments Considered by Courts and Tribunals in the UK in Relation to Disabled Employees and Job Applicants

Posted in : Supplementary Articles NI on 29 October 2018
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NOTE: The following paper does not constitute legal advice. It sets out a range of options for employers, employees and job applicants to consider with the objective that the suggestions spark further creative ideas to help disabled employees in the workplace. 

The Duty to Make Reasonable Adjustments

In Northern Ireland, section 4A of the Disability Discrimination Act 1995 imposes a duty on employers to make reasonable adjustments for disabled people in their employment. Section 20 of the Equality Act 2010 imposes an equivalent duty in the rest of the UK. The disabled person must be placed at a substantial disadvantage before the duty to make reasonable adjustments will arise and the employer is only under a duty to make reasonable adjustments where s/he knows, or could reasonably be expected to know.

In determining the extent to which it would be reasonable to make an adjustment employers should have regard to:

  • The extent to which it would prevent the effect;
  • Whether it is practicable;
  • Costs and extent of disruption;
  • Extent of employer’s financial and other resources;
  • Availability of financial and other assistance;
  • Nature and size of undertaking;
  • Private household disruption.

The 2017 EAT case of Home Office (UK Visas & Immigration) v Ms Kuranchie sends a clear warning to employers that the duty to make reasonable adjustments for disabled employees is a broad one, reaffirming that it is the responsibility of the company, not the employee, to identify adjustments for staff with disabilities. The duty rests with the employer and they must consider carefully what steps should be taken to remove the relevant disadvantage.

As the Equality and Human Rights Commission (UK) Code of Practice states: “There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask). However, where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable.”

This study examines what the courts and tribunals in GB and Northern Ireland have deemed reasonable adjustments in the last twenty years.

The study endeavours to provide employers with practical examples of reasonable adjustments that have been applied in leading case law in an attempt to encourage employers to think creatively when attempting to meet their obligations and reduce the risk of allegations of disability discrimination.

This study is, of course, a sample of cases owing to the vast number of claims brought before the tribunals, however, the findings will hopefully act as a useful guide to employers in the clarification of what constitutes a reasonable adjustment, how to comply with the legal obligation and, most importantly, how to ensure disabled staff remain in the workplace.

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)

In March of this year Ireland became the last of the 28 European Union states to ratify the UNCRPD, making it legally binding. The UNCRPD is an agreement to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. The UK Government signed the Convention in 2007, and ratified it on 8 June 2009.

Article 27 of the UNCRPD highlights the importance of ensuring disabled persons have access to the workplace, stating “Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.” Subsection (i) also states that parties will ensure that reasonable accommodation is provided to persons with disabilities in the workplace.

The Convention is unique as it is the first human rights convention of the 21st century and the first legally binding instrument with comprehensive protection of the rights of persons with disabilities.  Interestingly, the Convention does not establish new human rights, it does however set out with much greater clarity the obligations on States to promote, protect and ensure the rights of persons with disabilities. Thus, the Convention not only clarifies that States should not discriminate against persons with disabilities, it also sets out the many steps that States must take to create an enabling environment so that persons with disabilities can enjoy real equality in society. 

Examples of Reasonable Adjustments

 Reasonable Adjustment

 Total

 Adjusting workplace procedures      

 18

 Minor adjustments

 11

 Altering hours

 11

 Relocation

 7

 Changing roles

 6

 Technology

 5

 Reallocation of responsibilities

 3

 Waiving recruitment requirements

 3

 Support from a third party

 3

 Engagement of charity

 2

 Adjustments to premises

 2

 Extra training

 1

 Transport

 1

 Pay protection

 1


Findings

  • Adjustments to workplace procedures (for example, sickness policies, exam policies, recruitment procedures) and minor adjustments (for example, written instructions, reduced workload, auxiliary aids) featured highly.
  • Advances in technology have led to a changing working environment whereby technological aids, such as, voice recognition and innovative software, increasingly enable disabled employees to remain in the workplace.
  • Changing roles can often accommodate disabled employees. This can include being placed at a higher grade without any competitive interview or the creation of a new role if reasonable in the circumstances.
  • Employers may need to consider reallocating tasks or managerial responsibilities if the disabled employee is having difficulty with their current workload or find it hard to balance their duties.
  • Employees with a physical or mental illness may find it difficult waking up in the morning owing to medication or may find travelling to work during rush hour traffic incredibly stressful. Altering hours of work, for example, alternative shift patterns and flexible working arrangements, have been identified as examples of reasonable adjustments. Again with technological advancement, remote working is becoming both increasingly accessible and popular.
  • Disabled employees will often need additional support from third parties (internal and external), for example, extra training, provision of a mentor, provision of an interpreter, or engagement with mental health and disability charities in an attempt to prevent the substantial disadvantage.
  • It may be necessary for employers to waive recruitment processes when considering a disabled applicant. Recent case law has demonstrated this where employers have failed in their duty by forcing disabled candidates to go through competitive interviews and rigorous assessments. This may often require an employer to effectively treat the disabled individual more favourably than non-disabled persons.
  • Employers should be mindful that discrimination protections apply to job applicants, not just to individuals who have been hired.  A number of the aforementioned cases highlight the importance of employers taking time to carefully consider reasonable adjustments for prospective employees who are disabled. Employers are advised to ask on application forms whether the applicant requires any reasonable adjustments, and if so, what is required. If the suggested adjustment does not alter the effectiveness of the assessment and is feasible in practical terms then employers should consider implementing it accordingly.
  • The judgments urge employers to ensure the rules and practices they adopt do not indirectly disadvantage disabled employees. Employers should implement reasonable adjustments at the recruitment stage where necessary in an attempt to create a level playing field. Unfortunately, this is not always straightforward when attempting to balance the commercial objectives of the company.
  • The adaption of premises should also be considered by an employer, for example, provision of a lift to enable access to a building, disabled parking facilities and wheelchair access.

Examples of Reasonable Adjustments

Download our supplementary research paper entitled 'What do the courts and tribunals in GB and Northern Ireland deem a reasonable adjustment?'

For access to the full paper from the Annual Review of Employment Law 2018 click here to purchase notes.

This article is correct at 29/10/2018
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

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