Weekly dilemma: Adjustments for disabled staff
Graham Irons, partner, Howes Percival, looks at workplace adjustments for disabled staff.
One of my employees is disabled and needs adjustments to be made to her place of work. However, making these adjustments would be expensive and cause a lot of disruption. We do have other premises where it would be easier for us to make the necessary adjustments. Can we make the employee change her place of work and carry out the necessary adjustments to our other premises instead?
Under the Disability Discrimination Act (DDA), employers are under a duty to make reasonable adjustments to the disabled employee's place of work or working practices if a "provision criterion or practice" or "any physical feature" places the disabled employee "at a substantial disadvantage" when compared to a non-disabled employee. If an employer fails to make reasonable adjustments, this constitutes an act of disability discrimination.
However, must the employer make those adjustments to the disabled employee's place of work? The Employment Appeal Tribunal (EAT) recently decided in the case of Garrett v Lidl Limited that where the employee has a mobility clause in their contract of employment, the employer can transfer the disabled employee to another of its premises if it is easier to make the necessary adjustments at that location. As with the exercise of any mobility clause, it must be done reasonably. In Garrett, the EAT took into account that the alternative premises to which Ms Garrett was transferred was still close to her home, GP and hospital and, accordingly, the transfer was not unreasonable. Therefore a transfer to premises some distance away from the employee's home, which causes her difficulty in getting to work, could be seen by the courts as unreasonable, and risks a finding that you have breached your duty as an employer to make reasonable adjustments.
Finally, the EAT reminded employers that it was "good industrial sense" for them to first consider whether it is possible to make the necessary adjustments at the employee's current place of work. Therefore, before the disabled employee is transferred, assess whether the adjustments could be made to their existing place of work. If the assessment confirms that making the necessary adjustments would cause major disruption and incur substantial costs, then this can be relied upon in supporting any decision to transfer the employee.
So here are the key points for you to consider:
- Assess whether the adjustments can be made to the employee's existing workplace.
- Check that the disabled employee has a mobility clause in their contract of employment which allows the change of workplace envisaged.
- Ensure that the transfer to alternative premises is reasonable, taking into account the employee's disability and personal circumstances.
