Reasonable adjustments guide for employers

    reasonable adjustments

    IN THIS ARTICLE

    The duty to make reasonable adjustments can expose even the most reputable employers to legal and practical risks.

    A failure to understand the law and your obligations can result in unlawful treatment of individuals with disabilities, resulting in costly tribunal discrimination claims.

    In this guide for employers, we explain what reasonable adjustments are, with illustrative examples, and when the duty arises to make these adjustments.

    We also look at various other issues associated with handling requests for reasonable adjustments and share best practice advice on how to avoid falling foul of the law.

    What are reasonable adjustments at work?

    Under the Equality Act 2010, employers must make reasonable adjustments to ensure that workers with a qualifying disability are not substantially disadvantaged in doing their jobs when compared with those who do not have a disability. This applies to all workers, including apprentices and trainees.

    Under the 2010 Act, a person will be classed as having a disability if they suffer from either a physical or mental impairment that is having both a substantial and long-term adverse effect on their ability to undertake normal day-to-day activities. An impairment is long-term if it has lasted, or is likely to last, for a period of at least 12 months, or the impairment is recurring.

    In broad terms, a ‘reasonable adjustment’ is a change that must be made to remove or reduce any disadvantage related to a person’s disability when applying for or doing a job role. This could be a change to the working conditions or working environment of an existing member of staff, or a change to the advertising, assessment or interview arrangements for a job applicant.

    The statutory provisions around reasonable adjustments under the 2010 Act also extend to job applicants. This means that employers are required to make reasonable adjustments to all parts of the recruitment process which could place job applicants with disabilities at a substantial disadvantage when compared with other job applicants.

    Examples of workplace reasonable adjustments

    Reasonable adjustments can include changes to workplace policies or practices, or to the physical layout of the workplace and/or the provision of specialised equipment or support. They can also include changes to working conditions or arrangements, such as working hours.

    The 2010 Act does not list the sorts of adjustments that an employer might have to make, but common examples of reasonable adjustments might include:

    • providing recruitment literature in large print, Braille or audio
    • allowing candidates to complete a written assessment using a computer
    • allowing wheelchair users to be interviewed on the ground floor
    • installing a disability ramp for wheelchair users
    • including disabled parking spaces in the car park
    • offering additional recreation and refreshment facilities
    • purchasing specialist equipment, such as an ergonomic chair or keyboard
    • allowing different start and finish times, or other flexible working arrangements, such as a phased return to work, part-time hours or hybrid-working
    • modifying performance targets for those struggling to maintain a certain level of work due to disability-related symptoms or following long-term sick leave
    • discounting disability-related sick leave for the purposes of absence management.

    When does the reasonable adjustments duty arise?

    Under the Act, the reasonable adjustments duty arises where:

    • a provision, criterion and/or practice puts a person with a disability at a substantial disadvantage in comparison with jobs applicants or workers who are not disabled
    • a physical feature of the premises occupied by an employer puts a person with a disability at a substantial disadvantage in comparison with other job applicants or workers
    • the lack of an auxiliary aid puts a person with a disability at a substantial disadvantage in comparison with other job applicants and workers.

    In the first two scenarios, the employer must take such steps as are deemed reasonable to take so as to avoid the disadvantage in question. In the third scenario, the employer must take such steps as it is reasonable to have to take to provide the auxiliary aid. However, the duty to make reasonable adjustments will not arise in circumstances where the employer does not know, and they could not reasonably be expected to know, that a person has a disability.

    In most cases, the duty to make reasonable adjustments will be triggered following an express request by a job applicant or worker for suitable adjustments to support them in applying for or doing their job. However, the duty can also arise where someone is having difficulty with any part of their job or where their sickness record suggests long-term impairment.

    How to deal with requests for reasonable adjustments

    Where a request for reasonable adjustments has been made by a job applicant or worker, or the reasonable adjustments duty otherwise arises, the employer will need to discuss with the individual directly the circumstances involved. In this way a decision can be made as to what changes are needed to reduce or remove any disadvantage.

    However, the question of what amounts to a reasonable adjustment is an objective one, where the employer is not necessarily required to comply with every request. What is ‘reasonable’ will all depend on the circumstances of each case, where relevant factors can include the cost of the adjustment, what resources are available to the employer to fund this adjustment, how practical any adjustment will be to implement, and whether the adjustment will be effective in removing or reducing any disadvantage for the individual in question.

    Refusing a request for reasonable adjustments

    By law, even though employers must make reasonable adjustments where the statutory duty to do so arises, they are only required to make adjustments that are reasonable in all the circumstances. This means that if they cannot afford to make a particular adjustment, or it is not practical to do so, they may be justified in refusing any request. Equally, if there is not an adjustment that can reasonably be made to remove or reduce any disadvantage related to a person’s disability, then an employer can lawfully decline the request.

    Ultimately, it will be for an Employment Tribunal to decide, in the event of any claim for beach of the duty to make reasonable adjustments, what adjustments should be made and whether the employer was justified in refusing to make an adjustment. In deciding what is reasonable, it follows that the onus is likely to be far greater on large employers with deep pockets than on small employers with fewer resources. The issue will essentially be what the particular employer can reasonably do to avoid any disadvantage entailed by the disability in question.

    For example, a disabled worker might request that their employer build a special ramp for wheelchair access to their offices, while the employer may form the view that structural alterations to the building are not feasible in terms of cost and disruption. However, in refusing the request, there may be another workable solution, such as the provision of a temporary ramp, together with someone ready to assist with entry and exit to the building.

    Best practice advice for employers

    There are various legal and practical risks that can arise as a result of any failure on the part of an employer to make reasonable adjustments where required to do so. Under the Equality Act 2010, any such failure will be treated as unlawful disability discrimination for which the individual may bring a claim before the Employment Tribunal. If successful, the Tribunal will typically order the employer to pay an award of damages to the job applicant or worker. In some cases, these awards can run into tens of thousands of pounds. The employer may also be ordered to make any reasonable adjustments in relation to the relevant matter.

    Equally, where an employer unreasonably refuses a request to make changes to the working conditions or working environment of a member of staff with a disability, this could lead to that individual feeling forced to resign and claim constructive dismissal. This is where there has been a breakdown in the implied term of mutual trust and confidence between the parties. A constructive dismissal claim is not only likely to be very costly and time-consuming to defend but, as with a disability discrimination claim, this can seriously damage the employer brand.

    When dealing with requests for reasonable adjustments, or any other circumstances in which the reasonable adjustments duty arises, employers can avoid falling foul of the law by having regard to the following best practice advice:

    For job applicants

    When recruiting new workers, employers are under a duty to make reasonable adjustments throughout the entire recruitment process, from advertising a job through to final interview, where this process should not unreasonably disadvantage disabled applicants.

    Firstly, employers should provide information about the vacancy in alternative formats that are appropriate for applicants who are visually impaired, including large print, Braille or audio. They should also ensure that application forms are available in alternative formats. It is advisable for employers to make provision for this from the outset, rather than waiting for an applicant to request an application form in an alternative format, so as to save on time and to avoid dissuading a visually challenged applicant from applying in the first place.

    Secondly, in the context of assessments and interviews, although care must be taken as to any enquiries around health and disability, employers are allowed to ask questions to establish whether or not an applicant will be able to comply with a requirement to undergo an assessment or attend an interview, or whether the employer must make reasonable adjustments around this. For example, if an applicant is required to sit an assessment on a desktop computer, the employer can legitimately ask if they require any auxiliary aids to do so.

    An employer can choose to ask if a candidate needs an adjustment to the recruitment process or, alternatively, they can wait to be told. Once a disabled candidate has been offered a job and that offer has been accepted, the employer can then go on to inquire as to what reasonable adjustments that individual will need to do the job, where discussions can take place openly.

    For existing staff

    Once a job offer has been made and accepted, the opportunity will arise for the employer and new recruit to discuss what changes may need to be made to remove or reduce any disadvantages. In rare cases, a person may not be capable of undertaking the role in question by reason of their disability although, in most instances, employers will be able to establish ways to make the job role work for that individual. While it is not unlawful for an employer to make a job offer conditional upon the candidate passing an occupational health check, an offer can only be subsequently withdrawn if the individual does not meet the required condition and there are no reasonable adjustments that can be made to support them in their new role.

    More commonly, issues around reasonable adjustments will arise when an existing member of staff is having difficulty doing their job and are underperforming, or they have a record of recurring or long-term sick leave following illness or injury. In these circumstances, employers must fully investigate the cause of any underlying problems or ongoing capability issues.

    While there is often a temptation for employers to instigate capability procedures with a view to dismissal, steps must first be taken to explore the cause of someone’s poor performance or absences from work, and what reasonable adjustments can be made to support them moving forward. Ideally, this should be done in direct consultation with the individual and following a referral to an occupational health specialist. Importantly, a decision to dismiss on grounds of medical incapacity should only ever be used as a measure of last resort.

    Reasonable adjustments FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

     

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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