Making Reasonable Adjustments

An outline of the practical steps employers can take in order to reduce risk: Making Reasonable Adjustments.

Obesity is not currently classed as a disability under the legislation in Northern Ireland. However, with a quarter of the UK population estimated to be clinically obese and in light of the recent opinion issued by the Advocate General in respect of the European case Kaltoft v The Municipality of Billund C-354/13 (addressed below), it is possible that in the future a duty may be placed on employers to make reasonable adjustments to accommodate any special requirements arising from an employee's disability.

Obesity and Discrimination - Kaltoft

»     The Claimant worked as a child-minder for his local council in Denmark for 15 years.

»     The Claimant had a BMI of 54, weighing 150kg and is 1.72m tall.  He remained the same weight throughout his period of employment.

»     The Claimant alleges that his employment was terminated due to his obesity.

»     As the Respondent (Danish Council) deny the allegations, the Court of Justice of the European Union (CJEU) has been asked to rule on whether EU law prohibits discrimination on the grounds of obesity and/or whether obesity could be considered a disability.

»     The Advocate General issued his opinion on the matter this month, advising that:

• obesity is not currently a 'protected class' under EU Law; however
• severe obesity and its effects on an individual's ability to carry out normal day-today activities (BMI over 40) can come within the definition of disability which is protected in relation to discrimination.

»     Following the publication of the Advocate General's opinion, the CJEU is currently considering the judgement handed down in Kaltoft.  Given the prevalence of obesity in the UK population, a finding by the CJEU that obesity itself may amount to a disability will significantly increase the number of individuals potentially afforded protection from disability discrimination in the workplace.           

»     In anticipation of its findings, the practical steps set out below indicate how the law currently operates in Northern Ireland (NI) in relation to employers' obligations to make 'reasonable adjustments' for employees with a disability. 

Definition of Disability

»     The primary pieces of legislation in NI which protect employees with a disability from being discriminated against are the Disability Discrimination Act 1995 (DDA) and the Disability Discrimination (NI) Order 2006 (DDO).

»     The legislation only protects those who meet the definition of "disability." The DDA defines disability as “a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

»     The DDO amended the definition of disability so that people with progressive conditions such as cancer, HIV infection or multiple sclerosis (MS) are deemed to be disabled from the point of diagnosis.

Eligibility

»     "Physical impairment"

• The weakening of a part of the body.

- Examples are blindness, deafness and paralysis.

»     "Mental impairment"

• Includes mental ill health and any learning disability.

»     "Substantial"

• The effect of the physical and/or mental impairment on the employees' ability to carry out day-to-day activities is more than minor or trivial.  It does not need to have a severe effect.

»     "Long-term adverse effect"

• The effect must have lasted or is expected to last for at least 12 months.

Employer's Duties

»     Under the DDA it is unlawful for any employer to discriminate against disabled job applicants, employees and former employees in the following circumstances:

• recruitment and selection;
• terms and conditions of employment;
• sickness policies and procedures;
• pensions;
• employee benefits including promotion and training; and
• dismissal or redundancy.

Duty to make Reasonable Adjustments

»     Employers have a duty to make 'reasonable adjustments' if an employee with a disability is placed at a disadvantage within the workplace.

»     The duty only arises when the employer is aware that the employee with a disability will be placed at a 'substantial disadvantage' compared to a comparative employee without a disability.

»     The duty applies where a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of the premises occupied by the employer places a disabled person at a substantial disadvantage compared with an individual who is not disabled.

»      Reasonable adjustments should be made to ensure fair access for employees with disabilities and to compensate for the disadvantage they experience as a result of their disability.

Examples of Reasonable Adjustments

»     The nature of the reasonable adjustment which is required is dependent on each individual employees' needs, however, examples may include:

• adjustments to the employer's premises;
• providing information in accessible formats including braille or audio tape;
• reallocation of work;
• alteration of working hours;
• acquiring equipment to enable the employee to carry out their duties; and
• modifying existing equipment.

Failure to make Reasonable Adjustments

»     An employer will not breach the duty to make adjustments unless it failed to make an adjustment which is considered 'reasonable'. This is a fact-sensitive question.

»     If an employer fails to make 'reasonable adjustments' an employee may issue a claim for discrimination on the grounds of disability.

»     Employers should be aware that if a Tribunal makes an award in favour of the employee, the amount of compensation which may be awarded is uncapped in Northern Ireland and media attention/publicity maybe an unwelcome result of such failures.

Equal Opportunities Policy

»     Employers should ensure that they have an up to date Equal Opportunities policy in place.  This will help to reduce the possibility of discrimination occurring.

»     It is advised that employers implement and train employees with regards to the Equal Opportunities policy specifically in relation to anti-harassment and discrimination policies.

»     An employer should keep under close review those employees who are diagnosed as clinically obese, where such a condition could have more than a minor or trivial effect on their normal day-to-day functioning.