Last reviewed 19 September 2016
In addition to prohibiting disability discrimination, the Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled employees and job applicants, writes Amy Cunningham of Cunningham Legal.
This effectively means that an employer must treat such individuals more favourably than other employees, in order to remove or reduce any disadvantage that a disabled individual may suffer in the workplace.
A recent case in the Employment Appeal Tribunal (EAT) has clarified the scope of the extent of this duty and this short article serves as a reminder of, and update on, an employer’s obligations.
When does the duty arise?
The duty can arise when a disabled person is placed at a substantial disadvantage by:
a provision, criterion or practice — this is wide, and can be both a formal or informal policy, or a one off management decision
a physical feature — this could relate to the construction of a building, access to it, or the fixture or fittings within it
an employer’s failure to provide an auxiliary aid — this could be a specialist piece of equipment that provides support and assistance (for example, an adapted keyboard) or an auxiliary service (like a sign language interpreter).
For the duty to arise, the person must be placed at a substantial disadvantage — this means more than minor or trivial — and requires a comparison between the disabled person and someone who is not disabled.
However, an employer is not obliged to make adjustments unless it knows, or ought reasonably to know, that the individual in question was disabled and likely to be placed at a substantial disadvantage because of their disability.
The duty applies not only to employees, but also to office holders, contract workers and LLP members, as well as job applicants and former employees.
The Equality Human Rights Commission (EHRC) Employment Statutory Code of Practice (the “Code”), which employment tribunals must take into account, contains a list of possible adjustments that employers might have to make. The non-exhaustive list includes the following.
Making adjustments to premises.
Providing information in accessible formats.
Allocating some of a disabled person’s duties to another person.
Transferring a disabled person to fill an existing vacancy.
Altering a disabled person’s hours of working or training.
Assigning a disabled person to a different place of work or training.
Allowing a disabled person to be absent for rehabilitation, assessment or treatment.
Giving or arranging for training, or mentoring.
Acquiring or modifying equipment.
Modifying procedures for testing or assessment.
Providing a reader or interpreter.
Providing supervision or other support.
Allowing a disabled employee to take a period of disability leave.
Employing a support worker to assist a disabled employee.
Modifying disciplinary or grievance procedures.
Adjusting redundancy selection criteria.
Modifying performance-related pay arrangements.
Whether any potential adjustments are required will depend on what is reasonable in the circumstances, and this is a fact-sensitive issue. Factors that might be relevant are set out in the Code, and include the cost of the adjustment, as well as the financial and other resources of the employer.
In the recent case of G4S Cash Solutions (UK) Limited v Powell, the EAT held that it was a reasonable adjustment to continue employing a disabled employee in a more junior role but at his existing rate of pay. The case means that employers should consider carefully whether an existing rate of pay should be maintained where a disabled employee is redeployed into another role. As always, it is a fact-sensitive question and employers should seek specialist advice in such circumstances.
What if no adjustments are made?
A failure to make reasonable adjustments is a type of discrimination. If an individual succeeds in bringing a discrimination claim, a tribunal can order that the employer pays compensation of such amount as will put the claimant into the position they would have been in had the discrimination not taken place.