Disability discrimination and reasonable adjustments: checklist

Elizabeth Stevens of Steeles (Law) LLP concludes a series of articles on reasonable adjustments in relation to disabled employees with a checklist to help employers meet the obligation to make reasonable adjustments.  The duty to make reasonable adjustments applies throughout the employment relationship and employers may need to monitor and review whether or not existing adjustments continue to be appropriate. 

1. Be alert to the possibility that the duty to make reasonable adjustments may apply to any individual with physical or mental health issues.

For the duty to make reasonable adjustments to arise in relation to an employee or job applicant, he or she must be disabled according to the definition of disability in the Disability Discrimination Act 1995 (DDA) (which is due to be superseded by the Equality Act 2010). (See Definition of disability in the Disability discrimination section of the XpertHR employment law manual for details of who comes within the ambit of the DDA.) In some cases, it will be clear whether or not an individual falls within the definition. However, in many cases it will not be obvious.

Where it is unclear if the duty applies, it is advisable for the employer to seek medical advice to determine the extent of the individual's condition and, if the condition appears to fall within the definition of disability, the reasonable adjustments that might be suitable to accommodate him or her. In relation to job applicants (in which case it may not be practicable to seek medical advice), it is usually advisable for employers to assume that applicants are disabled if there is a possibility that they are covered by the definition, and to make the necessary reasonable adjustments accordingly.

2. Be aware that the duty to make reasonable adjustments applies throughout the employment relationship, including the job application stage.

The duty to make reasonable adjustments arises where any "provision, criterion or practice" applied by, or on behalf of, the employer, or any physical feature of the premises occupied by the employer, puts a disabled person at a substantial disadvantage compared with persons who are not disabled (s.4A(1) of the DDA). The duty applies in relation to employees throughout the employment relationship, but employers should be aware that it also applies in relation to applicants for employment. It applies in the case of any provision, criterion or practice for the purpose of determining to whom employment should be offered, if a disabled person is, or has notified the employer that he or she may be, an applicant for that employment (s.4A(2) of the DDA). This means that employers need to make reasonable adjustments to the recruitment process, in relation to a disabled job applicant who applies for a post or who notifies the employer that he or she is considering applying, if a requirement in the recruitment process puts that person at a substantial disadvantage.

3. Ensure that policies and procedures include a commitment to make reasonable adjustments to accommodate applicants and employees with disabilities.

It is good practice for employers to make clear their commitment to accommodating disabled employees and encouraging applications for employment from, or promotion of, disabled individuals. One way of achieving this is to review policies and procedures to ensure that they take into account the needs of disabled people and make clear that reasonable adjustments will be made if they are required. A statement to this effect should be included in the relevant policy, with an individual named as the person to contact if a disabled employee or job applicant has concerns or wants to raise the issue of reasonable adjustments.

4. Ensure that members of staff who are involved in recruitment or who have line management responsibilities are provided with training on the duty to make reasonable adjustments.

Managers should be provided with training to ensure that they are aware of the extent of the duty to make reasonable adjustments. This is particularly important for managers involved in recruitment, as they need to be aware of the employer's obligations towards disabled candidates both in terms of the recruitment process and in terms of considering their suitability for the job.

Line managers may be alerted to the possibility that an employee is disabled, perhaps due to performance issues or absence patterns. It is important that managers are equipped to deal with this type of situation in a sensitive manner and understand that they may need to explore with the employee (with the involvement of the HR department if appropriate), whether or not adjustments are required.

5. If necessary, make adjustments to the recruitment process.

Employers should make it clear when inviting applications for a post that they are prepared to make reasonable adjustments to the recruitment process. Section 60 of the Equality Act 2010 will, when implemented, restrict the ability of employers to make enquiries about disability and health during the recruitment process, before making an offer of employment. However, there will be some exceptions to this, which include making enquiries to establish if an individual is able to comply with a requirement to undergo an assessment as part of the recruitment process and to establish whether or not reasonable adjustments to the recruitment process are needed. Therefore, candidates can be asked, perhaps on the application form, if they are likely to require reasonable adjustments to be made to allow them to attend an interview or to complete other assessments that form part of the recruitment process.

Adjustments to the recruitment process can be relatively simple to make, and might include, for example, allowing candidates additional time to complete written assessments, making adjustments to the lighting in the room used, holding interviews at a different time of day (to avoid the rush hour) and ensuring that the room is accessible. The type of adjustment will depend on the nature of the disability, and should be discussed with the candidate in advance once the employer is aware of his or her disability.

6. Consult with applicants and employees about the adjustments that they may require.

An employer should not make assumptions about an individual's disability and should always consult with him or her about the adjustments that may be necessary. Case law indicates that there is no separate duty on employers to consult with disabled employees (Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 EAT), but tribunals have emphasised that it is good practice to do so, as does the Disability Discrimination Act 1995 Code of Practice - Employment and Occupation (PDF format, 755K) (on the Equality and Human Rights Commission website). Although expert medical advice is often recommended, the individual is in a unique position to understand the effect of the condition on his or her ability to carry out the relevant job, and may suggest adjustments that others have not considered. It should be remembered that the duty to make reasonable adjustments is a duty on the employer and the code of practice makes clear that there is no onus on the disabled person to make suggestions.

7. Seek medical advice where necessary to determine what reasonable adjustments might be necessary, particularly in relation to an employee who is absent on long-term sick leave.

Depending on the nature of an employee's condition, and particularly where he or she is absent on long-term sick leave, it is advisable for the employer to seek a medical report to determine the impact of the condition on the employee and whether or not it amounts to a disability under the DDA. The employer should also ask the doctor who is providing the report what reasonable adjustments might allow the individual to carry out his or her job.

The employer will need to get consent from the employee to obtain a medical report and must comply with the requirements of the Access to Medical Reports Act 1988 if requesting a report from a doctor who is responsible for the clinical care of the employee.

8. Seek specialist advice from organisations with expert knowledge about certain disabilities.

There are specialist organisations and charities that can provide information and guidance for employers to help them gain a better understanding of certain conditions and suggest potential reasonable adjustments. For example, mental health charities such as Mind (details on its website) can provide assistance to employers, as can the British Dyslexia Association (details on its website).

In addition, the Access to Work programme available through Jobcentre Plus (see the Business Link website for details), provides advice and assistance for employers seeking to recruit and retain disabled employees.

9. Draw up an agreement with the employee about the reasonable adjustments that will be made.

It is good practice for employers to record discussions held with employees about reasonable adjustments and to note what has been agreed. Having a written record is particularly useful when a disabled employee's line manager leaves, or the employee moves to a different role, so that the employee's new manager understands the situation. For a model form see XpertHR's Tailored reasonable adjustment agreement for an employee with a disability provided by the Employers' Forum on Disability (details on its website). Even if a form is not used, the employer should record the agreement and confirm to the employee, in writing, what adjustments it is proposing to make, with a date for them to be reviewed.

10. Monitor and review whether or not reasonable adjustments that have been adopted continue to be appropriate.

It is important for employers to review regularly whether or not the adjustments that they have put in place are sufficient to allow affected employees to carry out their duties. It might be appropriate, for example, to diarise a formal review on an annual basis, subject to any intervening changes that mean that a review should be carried out sooner. This is particularly important where changes are proposed to the employer's working practices or the employee's job. In this situation, the employer should consider what reasonable adjustments might be required and discuss this with the employee in advance of making those changes.

Next week's topic of the week article will be the first in a new series on varying contracts and will be published on 2 August.

Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).

Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.