Making reasonable adjustments - the duty defined
Gillian Howard provides advice on
making reasonable adjustments.
Q My employer has asked for advice on making
reasonable adjustments both generally and specifically for a job applicant with
learning difficulties. The applicant is slow to communicate and has difficulty
grasping concepts and ideas. What advice should I give my employer?
A Occupational health professionals are often asked about reasonable adjustments and should consider it part of their remit to advise accordingly.
Under s.4A of the Disability Discrimination Act 1995 (DDA), employers have a duty to make reasonable adjustments where a provision, criterion or practice, or a physical feature of the employer's premises, places a disabled person "at a substantial disadvantage in comparison with persons who are not disabled". The employer is obliged to "take such steps as it is reasonable, in all the circumstances of the case, for [it] to have to take in order to prevent the provision, criterion or practice, or feature" having the effect of placing the disabled person at a substantial disadvantage.
Failure to comply with the duty to make reasonable adjustments amounts to disability discrimination - the employer can no longer rely on a justification defence (this was removed in October 2004).
Employers should be advised and exhorted to seek advice from external organisations to find out what reasonable adjustments are physically or practicably available. Access to Work teams1 can be helpful, and the Employers' Forum on Disability2 has useful guidance and publications to assist employers in integrating and rehabilitating disabled workers back into employment.
Knowledge of disability
The obligation to make reasonable adjustments arises only if the employer knows, or could reasonably be expected to know, that an employee or job applicant is disabled and is likely to be placed at a substantial disadvantage.
When interviewing an applicant with a disability, it is important that the prospective employer has advance warning of any special requirements so that adjustments can be offered. It is therefore good practice to ask about this on the application form; but it would not be good practice to ask about the nature of any disability.
When interviewing an applicant with a learning disability or mental illness, employers would be advised to follow guidelines from Mencap (see box on p.36) or other similar bodies.
Meaning of "reasonable"
Case law provides useful guidance as to what is "reasonable" in terms of making adjustments for a disabled job applicant or existing employee.
According to the Employment Appeal Tribunal (EAT) in Smiths Detection - Watford Ltd v Berriman3, in determining whether or not an employer has discriminated against an employee by failing to comply with the duty to make reasonable adjustments under the DDA, a tribunal must consider:
- the relevant arrangements made by the employer;
- the relevant physical features of the premises occupied by the employer4;
- the identity of non-disabled comparators; and
- the nature and extent of the disadvantage suffered by the employee.
Unless the tribunal has identified these four matters, it cannot go on to judge if any proposed arrangement is reasonable.
Reasonable adjustments do not include:
- creating a post specifically, which is not otherwise necessary (in Tarbuck v Sainsbury's Supermarkets Ltd5 the EAT held that there is no obligation on an employer to create a post specifically, which is not otherwise necessary, merely to create a job for a disabled person);
- continuing to pay sick pay at full rate to an employee absent due to a disability-related illness (in O'Hanlon v the Commissioners for HM Revenue & Customs6 the EAT held that only in exceptional cases will an employer be obliged to pay a disabled employee more sick pay than it would a non-disabled employee); and
- converting a full-time vacancy into a part-time one before a disabled person has even applied for it (in NTL Group v Difolco7 the Court of Appeal held that the duty to make reasonable adjustments arises only after the disabled person has applied for the job; the advertising of a full-time job cannot constitute "an arrangement" for the purposes of the DDA, as an employer could potentially be liable for a job advertisement against the "whole innominate class of possible disabled applicants for the job", which would be a plainly unsatisfactory outcome).
Giving job vacancy preference to a disabled person
In Archibald v Fife Council8 - one of the leading cases on making reasonable adjustments - Mrs Archibald, a road sweeper, became virtually unable to walk after minor surgery and could not continue work as a road sweeper. She unsuccessfully applied for sedentary office jobs with the council but was eventually dismissed on grounds of incapacity. The House of Lords ruled that she should have been given priority over any able-bodied candidates even if the vacancy was at a slightly higher grade and slightly better paid.
The House of Lords held that "the duty ... could include transferring without competitive interview a disabled employee from a post she can no longer do to a post which she can do. The employer's duty may require moving the disabled person to a post at a slightly higher grade. A transfer can be upwards as well as sideways or downwards.
"The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination."
Creating a new post in substitution for an existing one
Employers are expected to be imaginative and devise ways of overcoming an employee's disability by, in some cases, redesigning the job.
In Southampton City College v Randall9 the employer had failed to comply with the statutory duty of reasonable adjustment under the DDA in respect of a lecturer who was no longer able to do his work because his voice had broken down. The EAT held that the creation of a new post in substitution for an existing post could be a reasonable adjustment.
There was a substantial reorganisation and Mr Randall's line manager conceded in evidence that it would have been possible to devise a job to accommodate Mr Randall's disability. However, the employer did not consider reasonable adjustments at all.
Undertaking a risk assessment
Unless a risk assessment would be futile because the medical evidence shows that no adjustments could be made to assist the disabled person to fulfil the role, an employer should assess the risk of the employee performing or returning to the role and consider whether or not any reasonable adjustments could be made.
In Hay v Surrey County Council10 the Court of Appeal agreed with the EAT that the tribunal's decision that the employer had failed in its duty to make reasonable adjustments was perverse.
The employment tribunal had found that Ms Hay's disability could have been accommodated by adjustments to her job that it had identified. The EAT overturned this decision. The Court of Appeal held that the tribunal had ignored medical evidence that, in its view, showed that adjustments to Ms Hay's job would have been futile.
Consultation before dismissal
In Rothwell v Pelikan Hardcopy Scotland Ltd11, the EAT held that the employer's failure to consult with Mr Rothwell before dismissing him on ill-health grounds amounted to a failure to make a reasonable adjustment.
The chair of the tribunal, Lady Smith, said that: "It is plain from a reading of Archibald v Fife Council alone that a tribunal cannot make a finding that less favourable treatment of a disabled person is justified under the 1995 Act unless it is satisfied that any reasonable adjustments that an employer had a duty to make ... have been carried out." She added that: "In the circumstances, consultation with the claimant prior to taking the decision to dismiss would have been a reasonable adjustment".
1. www.jobcentreplus.gov.uk/JCP/Customers/HelpForDisabledPeople/AccesstoWork/
3. EAT/0712/04 & EAT/0144/05.
4. See "Reasonable adjustments: the practicalities", OHR 115 (May/June 2005), pp.26-28.
5. [2006] IRLR 664 EAT.
6. [2006] IRLR 840 EAT.
7. [2006] EWCA Civ 1508 CA.
8. [2004] IRLR 651 HL.
9. [2006] IRLR 18 EAT.
10. [2007] EWCA Civ 93.
11. [2006] IRLR 24 EAT.
Mencap guidelines on recruiting applicants with learning disabilities
Mencap recommends that reasonable adjustments include:
- allowing a supporter to assist with the completion of the application form;
- allowing the applicant to submit their application in a different format, eg by telephone, audio tape or email;
- allowing a supporter to be present at the interview;
- allowing the applicant more time to do an aptitude test;
- allowing more time for the interview;
- making the interview informal and the panel as small as possible so it is less daunting;
- asking direct, concise questions (eg "What work did you do at the cafe?"); and
- asking follow-up questions (eg "Can you tell me some more about your job at the cafe?").
Source: Mencap (2002). Making it work: A guide to employing people with a learning disability
