Making reasonable adjustments for disabled employees presents affected employers with something of a dilemma in deciding what, legally, can be considered reasonable. John Charlton reports on recent defining cases and takes counsel from legal experts on this cloudy issue.
Reasonable adjustment is one of those phrases that could have come from lawyers' heaven, offering as it does so much room for interpretation. It can be a tricky concept to put into practice, which partly explains why it crops up in so many disability discrimination cases. Employers need to know just when a reasonable adjustment is, well, reasonable and lawful and what it might comprise.
Two recent rulings shed a little light: Salford NHS Primary Care Trust v Mrs A Smith and Leeds Teaching Hospital NHS Trust v Foster.
Box 1: Key factors
Employers employers should be aware of the following 10 factors when making reasonable adjustments:
- It can involve treating a disabled person more favourably than non-disabled ones.
- There is no obligation on an employee to suggest adjustments.
- The duty to consider adjustments is on the employer.
- The duty can apply after employment has ended.
- The costs of complying with the duty fall on the employer.
- There is no exemption for small employers.
- Adjustments are to the work and workplace but redeployment can be considered in extreme cases.
- There is no duty to make adjustments if the employer does not know or could not reasonably have known that the employee is disabled.
- There is no statutory duty to consult with relevant employees about adjustments, but it is wise to do so.
- Adjustments are designed to get the employee back to work and mitigate the disadvantage caused by the disability.
- Provided the enquiries relate to the duty to make reasonable adjustments, employers can make enquiries about disability and health prior to making a job offer.
Mrs Smith was a senior therapist at the Salford Trust who went on sick leave in March 2007, developed chronic fatigue syndrome in September 2007 and never returned to work. She was offered redeployment by the employer but felt it wasn't suitable. After the trust told her in writing that a failure to attend a hearing could result in her dismissal, Smith resigned and lodged a claim for unfair dismissal at the Manchester employment tribunal.
It found in her favour and said that the employer had failed to make reasonable adjustments. The trust appealed.
The Employment Appeal Tribunal (EAT) said that reasonable adjustments are limited to those that prevent a disabled person from being placed at a substantial disadvantage compared to those who are not disabled. Also, they are primarily concerned with enabling the disabled person to remain in or return to work.
The EAT, which upheld the appeal, ruled that the adjustments offered by the trust - basically training and an unpaid career break - would not have alleviated her disadvantage and were therefore not reasonable adjustments. This indicates that when employers try to decide what is an obligatory reasonable adjustment they must first identify the disadvantage faced by the relevant employee and whether the proposed adjustments would alleviate it.
In the Leeds case, Mr Foster was a senior security inspector who stopped work due to stress in 2006. He was dismissed on capability grounds in 2009. He won a case for unfair dismissal and disability discrimination at tribunal, which was then appealed by the trust.
In its ruminations on reasonable adjustments, the EAT said that it would have been a reasonable adjustment to have put Foster on the trust's redeployment register, even if there was only a prospect of a redeployment opportunity becoming available. Thus a real prospect of an adjustment removing a disadvantage is sufficient to make an adjustment reasonable. The trust lost the appeal.
These rulings only serve to make a muddy pool slightly less so. Martin Brewer, partner at Mills & Reeve, says employers should take one or more factors into account when deciding if an adjustment is "likely" to be reasonable: "The extent to which the adjustment would ameliorate the disadvantage: there need only have been a prospect of amelioration at the date of the decision whether or not to make an adjustment. A real prospect of an adjustment removing a disadvantage is sufficient to make an adjustment reasonable, but an adjustment may be reasonable even if there is a lower chance."
Other factors, according to Brewer, include:
- the extent to which the adjustment is practicable;
- the financial and other costs of making the adjustment;
- the extent to which the adjustments would have disrupted the employer's activities;
- financial and other resources available to the employer;
- availability of external finance or other assistance; and
- the nature of the employer's activities and the size of the undertaking.
The duty to make reasonable adjustments now falls in the purlieu of the Equality Act 2010, which superseded the Disability Discrimination Act 1995 (DDA), and came into force on 1 October 2010.
Box 2: Best defences
According to Martin Brewer, the best defences an employer can give if accused of not having made reasonable adjustments "are very limited and no more than":
- The employer did not know the employee was disabled.
- The employer could not reasonably know the employee was disabled.
- The adjustment was not reasonable because it was ineffective, too costly, or not practicable.
Emilie Bennetts, solicitor at Charles Russell, says reasonable adjustments changes made by the 2010 Act are "relatively minor": "One is that the duty now extends to providing an auxiliary aid where a disabled person would, but for the provision of the auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled." However, "the provision of auxiliary aids, eg voice recognition software, had been considered under the DDA as a possible readjustment and including it explicitly is merely a reflection of previous practice."
The Equality Act is supplemented by the Employment Code, which sets out a list of possible reasonable adjustments and examples. Some of the adjustments described by the code include:
- making adjustments to premises (eg widening doors) or moving furniture;
- providing information in suitable forms, such as Braille or audio tape;
- allocating some of the disabled employee's duties to others;
- altering hours of working or training;
- providing modified equipment;
- modifying grievance procedures so a disabled employee can be accompanied by a friend to a meeting; and
- adjusting redundancy selection criteria, for example ignoring periods of disability-related absence.
Bennetts adds: "The Employment Code also gives examples of factors that a tribunal might take into account in deciding whether the adjustment was reasonable. These include: the effectiveness of the proposed adjustment; the costs which would be incurred by the employer; the extent of the employer's financial and other resources; the nature of the employer's activities; the availability to the employer of financial or other assistance."
David Whincup, partner, Squire, Sanders & Dempsey, comments: "The code of practice is a statutory code, which means it may be used in evidence in legal proceedings brought under the Equality Act 2010 and that employment tribunals must take into account any parts of the code that appear relevant to any questions arising in proceedings."
The code also sheds light on the duty of an employer to find out if an employee is disabled, before making reasonable adjustments. The Equality Act states that an employer is under a duty to make reasonable adjustments only if it knows or could be reasonably expected to know that someone has a disability.
The code of practice, says Whincup, provides that: "Employers must do all they reasonably can to find out whether an employee has a disability. Employers cannot simply turn a blind eye or hide behind ignorance of the statutory definition of disability. They cannot claim they did not know about an employee's disability if, for example, an occupational health adviser or HR person or line manager knows of this."
Box 3: More key cases
Martin Brewer: Tameside Hospital NHS Foundation Trust v Mylott (2009) The EAT held that an employer's failure to facilitate a disabled employee's application for ill-health retirement could not be a breach of its duty to make reasonable adjustments. It stated that the duty to make adjustments does not extend to enabling a disabled employee who is no longer able to work to leave the employment on favourable terms. Reasonable adjustments are steps that make it possible for the employee to remain in employment and do not extend to providing compensation for being unable to do so.
Emilie Bennetts: Cosgrave v Caesar and Howie The EAT held that a legal secretary who was dismissed after being off for a year with depression had been discriminated against by her employer, even though neither the claimant nor her doctor could think of a reasonable adjustment that would have enabled her to return to work. The EAT held that if the employer had turned its mind to the issue there were options, such as a change in working hours, that might have facilitated a return.
David Whincup: Archibald v Fife This case found that employers may be required to take "positive" steps when making reasonable adjustments. The House of Lords held that the duty to make reasonable adjustments is triggered when an employee becomes incapable of doing their existing job and that it may be a reasonable adjustment for an employer to transfer an employee to fill an existing vacancy, even at a slightly higher grade, without requiring them to go through competitive interviews. As a result, employers need to ensure they consider what other vacancies are available prior to dismissing an employee on grounds of incapacity.