Duty to make reasonable adjustments: five tips from case law

WestEnd61/REX/Shutterstock.
WestEnd61/REX/Shutterstock.

The duty to make reasonable adjustments for disabled workers requires employers to consider what is “reasonable”. But how can employers make sure they stay on the right side of this requirement? We round up five examples where the courts and tribunals found that the duty was triggered.

1. Beware that pay protection may be a reasonable adjustment

Employers should exercise caution and take into account all the surrounding circumstances when deciding whether or not to protect a disabled employee’s salary level if he or she agrees to move to a lower-graded post.

In G4S Cash Solutions (UK) Ltd v Powell, the EAT held that protecting an employee’s pay may be a reasonable adjustment to counter a disabled employee’s disadvantage.

 

2. Poor memory may trigger duty to make reasonable adjustments

Where an employer applies a provision, criterion or practice that “bites harder” on a disabled employee, the duty to make reasonable adjustments will be triggered.

In Perratt v City of Cardiff Council, the EAT held that the employer’s duty to consider the adjustment of allowing an employee with a poor memory (caused by a disability) to record meetings was triggered.

 

3. Consider all reasonable adjustments before commencing performance reviews

Employers should consider making all reasonable adjustments to enable an employee’s performance to improve, before instigating formal performance reviews.

In South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley, the EAT found that the performance review and dismissal of an employee with dyspraxia were discriminatory.

This was because reasonable adjustments to allow her the chance of achieving acceptable performance in her work had not been made.

 

4. Reduction in hours can be a reasonable adjustment

In Ring v Dansk almennyttigt Boligselskab DAB; Skouboe Werge v Dansk Arbejdsgiverforening, the European Court of Justice confirmed that an employer’s duty to make reasonable adjustments can include an obligation to consider a reduction in hours.

However, where employers reduce a disabled worker’s hours, there may be some exceptional cases where the employer should continue to pay the disabled employee full pay.

This might be the case where the employee could have continued working his or her existing hours, but for the employer’s failure to make other reasonable adjustments.

 

5. Expectation to work late can trigger duty to make reasonable adjustments

Where employers presume that their staff will work late, they should tread carefully when it comes to expecting disabled workers to do so.

In Carreras v United First Partners Research, the EAT held that an “expectation” that an employee work late can be a “provision, criterion or practice”, triggering the duty to make reasonable adjustments.

While there is nothing in the law to prevent an employer from asking a disabled employee to work late, the employer should do so in a sensitive manner and think carefully about the effect on the employee’s disability.

It may be a reasonable adjustment for a disabled employee to work only his or her contractual hours.

 

Duty to make reasonable adjustments: the basics

The duty to make reasonable adjustments is a unique feature of disability discrimination law.

The Equality Act 2010 places a duty on employers to make reasonable adjustments to any provision, criterion or practice that they apply and to physical features of their premises, to accommodate the needs of disabled employees and job applicants.

This duty arises whenever any aspect of the employer’s working practices or premises puts a disabled employee at a substantial disadvantage, when compared with employees who are not disabled.

A failure to comply with the duty to make reasonable adjustments constitutes discrimination under the Equality Act 2010, unless the employer lacks the relevant knowledge.

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