Member Article

In the last article for our Tricky Issues series, we consider the duty to make reasonable adjustments for employees who are deemed disabled under the Equality Act 2010 and share our top tips for employers looking to make such adjustments.

When does the duty to make reasonable adjustments arise?

The duty to make reasonable adjustments arises when a disabled person is placed at a substantial disadvantage by:

• a provision, criteria or practice the employer applies;
• a physical feature in the employer’s premises; and/or
• an employer's failure to provide an auxiliary aid.

A disability under the Equality Act 2010 is any physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal daily activities. Case law has established that ‘substantial’ in this context means ‘more than trivial’ and that ‘long-term’ is any condition which has lasted or is likely to last for a year or more. The Equality Act definition of disability and its interpretation is broad and covers many conditions which we might not immediately think of as disabilities in day-to-day parlance.

Most protected characteristics (age, gender, pregnancy and maternity, sexual orientation, race, religion and belief, gender reassignment, marital status) are protected by four potential causes of action under the Equality Act: direct discrimination, indirect discrimination, harassment, and victimisation. Disability is protected by two further categories of discrimination claim: discrimination arising from a disability and failure to make reasonable adjustments. For this reason, it is important that employers understand the extent of the duty and what is required from them.

Reasonable adjustments – what are they?

A reasonable adjustment aims to eliminate or alleviate a disadvantage experienced by a disabled person because of a feature of the workplace (physical or otherwise). Essentially, an adjustment is designed to enable the employee to access, carry out, return to or progress in the role they are employed to do.

Failure to consider and, where appropriate, to make reasonable adjustments will give rise to a claim for failure to make reasonable adjustments.

Adjustments only have to be reasonable. What is reasonable will depend on the size and financial and administrative resources of the employer and on the likely effectiveness of the adjustment, that is, will the adjustment actually work to alleviate the disadvantage experienced by the disabled employee. Typical examples of adjustments that could be reasonable include altering duties, hours, or place of work, modifying policies, providing specialist equipment or additional support via supervision.

What is reasonable in the employee’s view and in the employer’s view may very well differ and, as a result, failure to make reasonable adjustments is one of the most common discrimination claims brought in the Employment Tribunal. Employers must be able to demonstrate that they have meaningfully engaged with disabled employees on the subject of adjustments and considered and implemented adjustments where possible.

Considering reasonable adjustments

Employers faced with the need to consider reasonable adjustments should bear the following in mind:

1. Engage with the individual and the disadvantage they need to overcome – Engaging with the employee about what they need and recording and acting on those conversations is essential.
2. Consider a wide range of options and trial adjustments if possible – Keep an open mind to what might be effective and, where possible, trial an adjustment. If it is not effective and the employer can explain why, this may put the employer in a stronger position to dismiss an employee if no other options are available and the employee cannot perform in the role.
3. Occupational Health - Referring an employee to occupational health may help an employer determine whether an employee is fit for work, whether they are likely to be considered disabled, whether any adjustments are likely to work and how long the adjustments may be required.
4. Access to Work - Access to Work is an organisation which supports disabled employees stay in work and, by extension, as a support to the employer in establishing what can and cannot be done to support the employee. Through Access to Work, employees can apply for grants to help pay for practical support at work such as:
   • BSL interpreters, lip speakers or note takers;
   • adaptations to their vehicle;
   • taxi fares to work or a support worker if they cannot use public transport;
   • a support worker or job coach to help them in the workplace
5. Physical adjustments or auxiliary aids – If considering physical adjustments bear in mind that there are many available options. A physical adjustment or auxiliary aid could be anything from installing a lift to providing a headset so take advice from experts who can advise on different products.
6. Phased Returns - Phased returns are a common adjustment when employees are returning to work after a period of absence. This may be an appropriate adjustment if the employee needs to continue their recovery while working or where the disability is related to workplace stress. A phased return might involve working fewer days or fewer hours and might be staggered, increasing gradually over a number of weeks.
7. Time Frames - When making a reasonable adjustment it is helpful to consider its duration. Some adjustments may be permanent while others will only be sustainable for shorter periods and it is important that the terms of any adjustment are clearly explained at the outset. If an adjustment cannot be sustained, it may not be reasonable and the employer will need to be clear on why that is the case. There should be an ongoing conversation with the employee. Follow up appointments with occupational health may be advisable if the adjustment is not having the desired effect.
8. Considering Dismissal - If an adjustment has been made and the employee is still having difficulties fulfilling their role, then it may be necessary to move onto a capability-based dismissal procedure. There may also be situations in which the only possible adjustments are not reasonable to implement because of cost or sustainability concerns which may mean that dismissal is the only viable option.

Reasonable adjustments are a complex area and employers should always take advice before dismissing and employee who might be disabled for the purposes of the Equality Act.