Following a recent decision by the House of Lords, disability-related discrimination is now very difficult to establish. As a result, disabled employees and job applicants are focusing on the employer’s duty to make “reasonable adjustments” to premises or working practices to account for their needs. So how can employers avoid breaching this duty?
Q What information should an employer gather regarding disability?
A An employer is only obliged to make reasonable adjustments where they know – or could reasonably be expected to know – that the person concerned is disabled and is likely to suffer a substantial disadvantage in comparison to a person who is not disabled. The employer should have suitable and confidential systems in place to gather information about an employee’s or candidate’s disability.
Once disability is established, the employer should consider consulting with the individual, their GP and/or the employer’s occupational health adviser on how the person’s ability to carry out their job is affected by the disability, and on the types of reasonable adjustment that could be made.
Q What information is a disabled employee expected to provide?
A They are expected to co-operate if they wish to rely on the employer’s duty to make reasonable adjustments. However, an employer can have constructive knowledge of a disability even when they are not specifically informed of it.
Q What adjustments could be considered reasonable?
A Although the range of possible adjustments is limitless, the Disability Discrimination Act 1995 (DDA) and the Disability Rights Commission (DRC) code of practice provide examples of steps that could be taken by an employer to rectify any disadvantage that the person with a disability might face. These include:
- Conducting a proper assessment of what reasonable adjustments may be required;
- Altering hours or the place of work;
- Reallocating duties to another employee; or
- Modifying disciplinary or grievance procedures or redundancy selection criteria.
The DDA also provides a list of factors that must be taken into account when deciding whether a step is reasonable. These include:
- The likelihood of the adjustment removing or reducing the disadvantage to the disabled person (eg, offering part-time hours is a reasonable adjustment only if the employee is fit to return to work from sick leave);
- The nature of the employer’s activities and the size of its undertaking;
- The costs the employer will incur, and the resources and assistance available; and
- The disruption to the employer’s organisation.
Q When should adjustments be reviewed?
A The DRA code recommends the employer should consult disabled employees at appropriate stages about their needs and, where an employee has a progressive condition, about what effect the disability might have on future employment, so that reasonable adjustments can be planned. There is no specific guidance on how often reasonable adjustments should be reviewed and the requirements for a review process are likely to vary in each individual case.
Q Is continuation of sick pay a reasonable adjustment?
A When an employee’s contractual entitlement to sick pay has been exhausted, it would not normally be considered necessary as a reasonable adjustment to give additional sick pay to a disabled employee, unless their absence from work (and therefore their loss of pay) was caused by the employer’s failure to make reasonable adjustments in the first place.
Q Is there a duty to treat disabled employees more favourably?
A The duty to make reasonable adjustments may require an employer to take steps that could amount to positive discrimination, although this is still subject to the reasonableness requirement.
For example, where an employee’s disability makes it impossible for them to perform the essential functions of their job, it may be reasonable to transfer the employee to another job and, if the disabled person has the necessary skills, to offer them the position in preference to non-disabled candidates. However, this may not be reasonable where the new job involves a promotion.
Also, the duty to make reasonable adjustments does not necessarily require that a disabled employee, who has or may have difficulties in interview, must be placed into the new job without interview or a selection process. It would be a matter of fact in each case.