Reasonable adjustments for disabilities: Seven examples for employers

Authors: Fiona Cuming

The Equality Act 2010 imposes a positive obligation on employers to make reasonable adjustments that will assist disabled individuals. While employers may be familiar with the duty, sometimes it is not straightforward deciding what is "reasonable". We explore some of the key factors as we look at seven situations where adjustments were found to be reasonable.

Duty to make reasonable adjustments

Section 20 of the Equality Act 2010 imposes a duty on all employers to make reasonable adjustments to any provision, criterion or practice (PCP) applied by them, or physical feature of their premises, that puts a disabled person at a substantial disadvantage. Employers must take such steps as it is reasonable to have to take to avoid the substantial disadvantage.

The Equality and Human Rights Commission's "Employment Statutory Code of Practice" states that factors that employers should consider include:

• if taking any particular step or steps would be effective in preventing the substantial disadvantage;
• the practicability of the step;
• the financial and other costs of making the adjustment and the extent of any disruption caused;
• the extent of the employer's financial or other resources;
• the availability of financial or other assistance to help make an adjustment (such as advice through Access to Work); and
• the type and size of the employer.

The duty applies at all stages of employment, including recruitment and dismissal.

The duty is triggered where:

• an employer knows, or reasonably ought to know, that an individual is disabled; and
• the individual is likely to be placed at a substantial disadvantage because of their disability.

1. Parking spaces

Employers that have premises with car parks should consider if the particular disadvantage sustained by the disabled employee would be addressed by having a designated parking space or some alternative car parking provision. This could be as a single adjustment or as part of a package of reasonable adjustments.

In Environment Agency v Donnelly EAT/0194/13, the Employment Appeal Tribunal (EAT) upheld the employment tribunal finding that the employer had breached its duty by failing to provide a car parking space for an employee with osteoarthritis. The EAT agreed with the tribunal that the requirement for the employee "to walk a distance from her car to the office in the prevailing cold weather and possibly on uneven surfaces was clearly a provision criterion or practice that significantly disadvantaged her".

In Linsley v Revenue and Customs Commissioners [2019] IRLR 604 EAT, the EAT found that the employer ought to have been aware that looking for a parking space was a source of stress for the employee whose disability manifested itself in an "unpredictable, sudden and urgent need for a bowel movement".

2. Internal meetings

If an employee's disability impacts on their ability to take notes or recall the details of a meeting, employers should consider making reasonable adjustments. These could include allowing the employee to record the meeting, offering the services of a note-taker or giving the employee extra time to take notes during the meeting.

In Perratt v City of Cardiff Council EAT/0079/16, the employee had a number of disabilities, which affected her memory and meant she struggled to cope when her duties were expanded. The EAT held that, because the employee was less able to remember what was said in a meeting than most other employees, recording a meeting could be a reasonable adjustment.

3. Recruitment tests

In certain circumstances, it may be a reasonable adjustment for employers to allow a job applicant extra time to complete a recruitment test or other assessment. Employers should also consider if it would be a reasonable adjustment to modify the form of the test, for example putting it in audio, Braille or a large print format.

In Government Legal Service v Brookes [2017] IRLR 780 EAT, the EAT held that the requirement for a job applicant with Asperger's syndrome to complete an online multiple-choice psychometric test was not a proportionate means of achieving the legitimate aim of testing the ability of applicants to make effective decisions and was not justified. Modification of the test format for the applicant to allow her to give short written answers would have been a reasonable adjustment for the recruiter to have made.

4. Hot-desking

While hot-desking helps increase communication among members of staff, there are some drawbacks as it operates on a first-come, first-served basis. This can put employees who need additional time to travel to work for medical reasons at a substantial disadvantage compared with others.

In Roberts v North West Ambulance Service EAT/0085/11, an employee with a social anxiety disorder worked in a busy control room with other dispatchers who hot-desked. His managers took steps to have a seat available for him whenever possible, but this was often difficult to achieve due to the overlapping shift system. The tribunal dismissed his claim because the employee had not been required to hot-desk himself.

In allowing the appeal, the EAT held that the tribunal should have examined if the hot-desking arrangement placed the employee at a substantial disadvantage because his desk was not always available and, if so, should have considered if his employer took reasonable steps to avoid the disadvantage.

5. Performance issues

Before starting any performance management process, employers should consider if the performance issues may be related to a medical condition that could amount to a disability. This is particularly the case where a long-term employee is showing signs that they are having problems performing their normal duties.

In South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley EAT/0341/15, the EAT found that the employment tribunal was entitled to find that the performance review and dismissal of an employee with dyspraxia were discriminatory because the employer had not made the necessary reasonable adjustments to allow her the chance to improve her performance. In particular, the tribunal had found that the employer had failed to put in place 30 hours of specialist tuition, which would have improved the employee's accuracy rate and "could have avoided the need for performance management".

6. Pay protection

In certain circumstances, it may be a reasonable adjustment to protect the pay of a disabled employee who is moving to a more junior post because they are unable to carry out their current role. Employers should consider all the surrounding circumstances before discounting this as a reasonable adjustment, such as the cost of protecting the employee's pay, whether it is likely to be a long- or short-term change, and the financial resources of the business.

In G4S Cash Solutions (UK) Ltd v Powell [2016] IRLR 820 EAT, the EAT held that pay protection should not be excluded as a "step", because it is no more than another potential form of cost and the objectives of the discrimination legislation "plainly envisage an element of cost to the employer".

However, the EAT added that it did not expect it will be an "everyday event" for a tribunal to conclude that an employer is required to make up an employee's pay long term as each case will turn on its own facts. The EAT also made it clear that what is a reasonable adjustment at one point may at some time in the future not be reasonable.

7. Sick pay

If an employee is on disability-related sickness absence an employer will not normally be required to make adjustments to its sick pay policy.

In O'Hanlon v The Commissioners for HM Revenue & Customs [2006] IRLR 840 EAT, the EAT said: "it will be a very rare case indeed where … merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability-related absences, would be considered necessary as a reasonable adjustment." The EAT reached a similar conclusion in Royal Bank of Scotland v Ashton EAT/0542/09 & EAT/0306/10.

However, both O'Hanlon and Ashton recognised that there may be exceptional cases where enhanced sick pay could be required as a reasonable adjustment. For example, in Nottinghamshire County Council v Meikle [2004] IRLR 703 CA, the employee had a visual impairment and her employer had not made reasonable adjustments to accommodate this impairment. It was only because her employer had not made those reasonable adjustments that she was off work. In those circumstances (ie the employee was off work sick because of the employer's failure to make reasonable adjustments), the Court of Appeal held that paying sick pay beyond what the employer would normally pay would be a reasonable adjustment.