The Equality Act 2010 sets out various types of discrimination which most employers are aware of (direct, indirect, harassment and victimisation). When it comes to disability discrimination however, there are additional protections for disabled workers, and certain less well understood obligations are placed on employers.
In this article, we look at two recent cases which dealt with the duty on employers to make reasonable adjustments and what constitutes a ‘reasonable adjustment’.
When does the duty arise?
The duty to make reasonable adjustments arises where a worker or an applicant is placed at a substantial disadvantage, compared to people who are not disabled, by:
- A “provision, criterion or practice” (PCP) operated by the employer (this can be many things, such as the application of a particular policy or working practices).
- A physical feature at the employer’s premises (such as access to a building).
- A failure to provide an auxiliary aid (such as a special screen for the partially sighted).
When the duty arises, the employer is required to take such steps as are reasonable to alleviate the disadvantage (or provide the auxiliary aid where applicable).
What is a “reasonable” adjustment?
Not all adjustments are reasonable. There are a variety of factors to take into account, including:
- Will the adjustment alleviate the disadvantage?
- Is the adjustment practicable?
- What are the costs, and the financial situation of the business?
- How will the adjustment disrupt the employer’s activities?
- Is there any external funding available?
- How big is the business?
In two recent cases, the Employment Appeal Tribunal (EAT) considered whether the adjustments already put in place by the employers were sufficient to offset the disadvantages suffered by the employee, and whether the adjustments the Claimant sought were reasonable.
In Martin -v- Swansea the Claimant was unable to perform her role by reason of a disability and went on long term sickness absence. Despite being placed on the employer’s redeployment register for an extended time, the Claimant did not find a new role and was ultimately dismissed.
The application of the employer’s sickness absence policy placed Ms Martin as a substantial disadvantage (dismissal). The EAT considered whether the employer took reasonable steps to alleviate that disadvantage. The Claimant contended that her employer should have made a reasonable adjustment by placing her in a different role. The EAT disagreed, finding that the role would have to be suitable based on the Claimant’s skills, rather than simply giving her a job.
The EAT was also satisfied that the employer had already made reasonable adjustments, by placing the Claimant on its redeployment register for an extended period. It concluded that extending the redeployment period further would not have led to a different result and would not have alleviated the disadvantage of being dismissed.
In Aleem -v- E-Act Academy, the Claimant was unable to continue in her role due to disability. She was redeployed to a lower paid role as an alternative, with a three-month protected period on her original higher salary. The period on the higher salary was extended to six months as the employer considered the Claimant’s grievance about reducing her pay. After the grievance process concluded, the Claimant’s salary was reduced. The Claimant brought a claim, that her employer had failed to make a reasonable adjustment by not retaining her on her full salary in the new role.
The EAT held that it was not a reasonable to require the employer to keep paying the Claimant at her higher salary indefinitely, for a lower graded role.
There are lots of factors to consider when it comes to making reasonable adjustments:
- Is the individual disabled?
- Is there something at work that is putting them at a substantial disadvantage?
- What steps are reasonable for us to take to remove that disadvantage?
Each of these questions is fact sensitive and can be legally complex, as well as being delicate to deal with from a HR perspective. If you want to find out more about this topic, or need advice on a similar situation with any of your staff, please do not hesitate to contact Paul, Neal, Vicky or Sarah on 0161 832 2500.