Disability discrimination and reasonable adjustments: overview
Elizabeth Stevens of Steeles (Law) LLP begins a series of articles on reasonable adjustments with an overview of the requirement in the disability discrimination legislation to make reasonable adjustments to accommodate disabled employees and job applicants. We look at when the duty to make reasonable adjustments arises and the nature and extent of that duty.
Introduction
The duty to make reasonable adjustments is a key requirement of the Disability Discrimination Act 1995 (DDA), which employers must consider in relation to disabled employees and job applicants. Under s.3A(2) of the DDA, failure on the part of an employer to comply with this duty amounts to disability discrimination.
When does the duty arise?
For an employer to be under a duty to make reasonable adjustments, the employee's (or prospective employee's) condition must fall within the definition of a disability under s.1 of the DDA (see Definition of disability in the Disability discrimination section of the XpertHR employment law manual). The duty arises 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, puts a disabled person at a substantial disadvantage compared to persons who are not disabled (s.4A(1)). The duty applies in respect of disabled employees and job applicants and, in the case of a provision, criterion or practice for determining who should be offered employment, to a disabled person who is, or has notified the employer that he or she may be, an applicant for that employment (s.4A(2)). In other words, employers are not required to make adjustments to the recruitment process unless a disabled person has actually applied for the job or has notified the employer that he or she is considering applying.
For a disadvantage to be "substantial" it must be more than minor or trivial (Disability Discrimination Act 1995 Code of Practice - Employment and Occupation (PDF format, 755K) (on the Equality and Human Rights Commission (EHRC) website)).
In NTL Group Ltd v Difolco [2006] EWCA Civ 1508 CA, the Court of Appeal held that the employer's duty to make reasonable adjustments was triggered only when the arrangements placed the disabled person at a substantial disadvantage. Until the individual applied for a job, the duty was not triggered. There is no requirement for employers to ensure that their working arrangements would never disadvantage a disabled person; the obligation to make reasonable adjustments arises only when a disabled person is, in fact, disadvantaged.
The Court of Appeal in Collins v Home Office [2005] All ER (D) 300 (May) CA ruled that, in circumstances where the employee is on long-term sick leave, if the proposed adjustment is a phased return to work, there is no duty on the employer to make such an adjustment while the employee is wholly unable to do work of any sort, and there is no clear indication that he or she is going to return to work. However, the Employment Appeal Tribunal (EAT) has recently held that the decision in Collins has not established a general principle that there is no duty to make reasonable adjustments until the employee has indicated when he or she will be able to return to work (London Underground Ltd v Vuoto EAT/0123/09). The EAT said that the decision in Collins turned on its own facts and differed from the situation in Vuoto, where the claimant was absent in part due to the employer's actions and an occupational health report had indicated that he would be able to return on a phased basis.
Knowledge of disability
Employers are exempt from the duty to make reasonable adjustments if they do not know, and could not reasonably be expected to know, that the individual has a disability and is likely to be put at a substantial disadvantage (s.4A(3) of the DDA).
In many cases, the employer will already know of an employee's disability or will at least be alerted to the possibility. Actual knowledge is not required for the duty to apply; the duty will still arise where an employer ought to realise that the employee is disabled, for example from the contents of a medical report, even if the report does not expressly state that he or she is disabled (Chief Constable of Avon and Somerset Constabulary v Dolan EAT/0295/09).
In Secretary of State for the Department for Work and Pensions v Alam [2010] IRLR 283 EAT, the EAT decided that, on the issue of the employer's knowledge, there were two questions to be answered. First, did the employer know both that the employee was disabled and that his or her disability was liable to place him or her at a substantial disadvantage due to a provision, criterion or practice? If the answer is "no" the second question is: ought the employer to have known both that the employee was disabled and that the disability was liable to affect him or her in that way? The code of practice states that employers must do all they can reasonably be expected to do to find out whether or not an employee has a disability and is likely to be placed at a substantial disadvantage by a provision, criterion or practice or physical feature of the premises.
What are employers required to do?
Employers must take steps that are reasonable, in all the circumstances, to prevent a provision, criterion or practice, or physical feature, having the effect of placing a disabled person at a substantial disadvantage. Examples of what might amount to reasonable adjustment are set out in s.18B(2) of the DDA, and include making physical adjustments to premises, acquiring or modifying equipment, allocating some of the disabled person's duties to another person, altering his or her hours of work or transferring him or her to a different job. In complying with the duty to make reasonable adjustments an employer is permitted to treat a disabled employer more favourably than other employees (s.18D(1)).
A tribunal will determine objectively the question of what adjustments are reasonable in the circumstances. Factors to be taken into account include the extent to which the adjustment would prevent the disadvantage to the disabled person, the extent to which it would be practicable for the employer to take the steps in question, the costs of making the adjustment and the employer's financial and other resources (and the availability of financial assistance), the nature of the employer's activities, the size of its undertaking and the disruption to its activities (s.18B(1)).
Case law has provided many examples of what amounts to a reasonable adjustment. While these cases are useful for illustrative purposes, what is "reasonable" will vary according to the nature of the disability, the individual's duties and the employer's circumstances.
There is no requirement for an employer to make adjustments if the medical evidence suggests that adjustments would be futile (Hay v Surrey County Council [2007] EWCA Civ 93 CA). In Romec Ltd v Rudham EAT/0069/07, the EAT ruled that, in determining whether or not an employer has complied with the duty to make reasonable adjustments, the critical question is whether or not there is a real prospect that the adjustment would have removed the disadvantage suffered by the employee. If it would be unlikely to do so, the adjustment is not a reasonable one to make.
An employee cannot insist on a particular adjustment. For example,
in Secretary of State for Work and
Pensions (Job Centre Plus) v
It could be a reasonable adjustment for an employer to create a new post in substitution for an existing post if, for example, there was a restructuring exercise and it was reasonable for a new job to be created for the disabled person as part of that process (Southampton City College v Randall [2006] IRLR 18 EAT). The EAT has recently suggested that it may even be a reasonable adjustment for an employer to swap the role of the disabled employee with that of a non-disabled employee (Chief Constable of South Yorkshire Police v Jelic EAT/0491/09).
It is not generally a reasonable adjustment for an employer to pay additional sick pay during periods of disability-related absence (O'Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 CA), although this might be the case where the disability-related absence has been caused by the employer's failure to make reasonable adjustments (Nottinghamshire County Council v Meikle [2004] IRLR 703 CA).
Consultation over adjustments
Employment tribunals have emphasised the importance of employers discussing with the disabled employee what adjustments might be necessary to enable him or her to carry out his or her job. However, there have been conflicting decisions from the EAT as to whether or not employers are under an express duty to consult over reasonable adjustments, and whether or not a failure to do so is a breach of the DDA.
The preferred approach of the EAT seems to be that expressed in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 EAT, in which it was decided that the employer is not under a separate and distinct duty to consult an employee about what reasonable adjustments might be necessary. However, the EAT was careful to qualify this decision by asserting that it would be wise for employers to consult with employees to avoid the risk of failing to make reasonable adjustments that they had not considered. Proper consultation with a disabled employee is more likely to result in agreement over reasonable adjustments and reduce the likelihood of a claim for disability discrimination.
Consultation alone does not necessarily mean that an employer has discharged its duty, even if an employee or his or her advisers cannot suggest a reasonable adjustment. The duty to make reasonable adjustments rests with the employer (Cosgrove v Caesar & Howie [2001] IRLR 653 EAT). The code of practice states that there is no onus on the disabled person to suggest what adjustments should be made, although it is good practice for the employer to ask.
Equality Act 2010
The DDA is due to be consolidated with legislation relating to the other discrimination strands, into the Equality Act 2010. The Government has announced its intention to implement most of the provisions in the Equality Act 2010, from 1 October 2010.
The provisions relating to reasonable adjustments in the DDA are largely replicated in s.20 of the Equality Act 2010, supplemented by sch.8. In practice, it appears that little will change in the way that employers are expected to fulfil the duty to make reasonable adjustments in relation to disabled employees.
However, the Equality Act 2010 makes clear that the duty extends to taking reasonable steps to provide an "auxiliary aid", where a failure to do so would place the disabled person at a substantial disadvantage (s.20(5)). In addition, it requires employers to take reasonable steps to provide information in an accessible format (s.20(6)). It also contains express provision confirming that employers cannot pass on the cost of making reasonable adjustments to employees (s.20(7)).
The factors to be taken into account when determining whether or not adjustments are reasonable (listed in s.18B(1) of the DDA) are not replicated in the Equality Act 2010, although the draft Code of practice on employment (on the EHRC website) largely reproduces the list as the matters that tribunals are likely to take into account when deciding whether or not an adjustment would be reasonable. The Equality Act 2010 also does not reproduce the examples of what might amount to reasonable adjustments (listed in s.18B(2) of the DDA).
Next week's topic of the week article will be a case study on reasonable adjustments and will be published on 12 July.
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.
