Disability inclusion as an ESG issue

Support for disabled employees should be an integral part of the equity, diversity, and inclusion agenda of any organisation. Groups like The Valuable 500 are intensifying the focus on disability inclusion, pushing it up the agenda for ESG-aware employers in 2024. The new government plan to introduce disability pay gap reporting for employers with more than 250 employees. This is likely to prompt a review of how employers capture disability data and an analysis of the representation of disabled staff within an organisation. 

Unlike other protected characteristics under the Equality Act 2010, disability comes with a proactive duty on employers to make reasonable adjustments for disabled staff in certain circumstances. Against that backdrop, this Law-Now, which is the first in a two part series, contains a reminder of the legal framework.  Throughout this article we will generally focus on employees, but it is important to remember that others are protected too, including job applicants and workers.

Making reasonable adjustments

Employers have a duty to make reasonable adjustments for employees, and prospective employees, with a disability. This obligation frequently raises a number of questions from employers trying to navigate what is reasonable in any given situation.  We typically find that each case has to be looked at individually and a decision taken by applying the legal tests. Whilst respecting the individual nature of each case, however, it is also an area of the law where it pays dividends to have protocols and policies in place to assist employees and managers to navigate it carefully and sensitively, to maximise employee performance and minimise legal risk.

The legal test: breaking it down

Disability

For the duty to make reasonable adjustments to be triggered, the employee must be disabled in accordance with the definition in the Equality Act 2010, which is “a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

The exception are the “deemed disabilities”, including cancer, HIV, multiple sclerosis, blindness and severe disfigurements. If an employee has one of these conditions they will automatically be considered to have a disability and there is no need to assess whether the legal definition applies.

We use the term disability throughout this article with reference to the Equality Act definition, but we acknowledge that some employees may object to the label. Care should be taken to use an employee’s preferred terminology wherever possible, or to sensitively explain why this is not possible, if that is the case (for example, in pre-populated forms or HR systems). For example, many neurodivergent employees who may meet the legal definition of disability in the Equality Act 2010 do not consider themselves disabled and would object to that label.

The duty to make reasonable adjustments

The duty to make reasonable adjustments is triggered where a provision, criterion or practice (PCP) applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, or a failure to provide an auxiliary aid places a disabled person at a substantial disadvantage compared with people who are not disabled.

Taking each of those factors in turn.

What is a PCP?

Almost any employment-related matter in the workplace has the potential to amount to a PCP, from work allocation, to policies and procedures, from day-to-day operational issues to metrics applied to performance.

Some examples of PCPs are as follows:

• The application of a sickness absence policy.
• A requirement to work in an office full-time (as opposed to permitting hybrid or remote working).
• A requirement to talk on the phone during an employee’s job role.
• A requirement that job applicants take a cognitive ability test as part of a job application process.

What is a physical feature?

The physical features of premises include anything related to the design or construction of the premises where the individual is required to work, such as access arrangements, furniture and desk set-up, fixtures, fittings and equipment (think head-set, mouse, keyboard, screens etc.) and may include temporary and permanent obstructions (i.e. changes and maintenance requirements will need to factor in the disabled employees impacted).

What is an auxiliary aid?

An "auxiliary aid" includes hearing aids, specialist computer equipment or software, and furniture like a specially designed chair or a standing desk.

What is the substantial disadvantage?

For the duty to make reasonable adjustments to arise, the job applicant or employee must also be placed at a "substantial disadvantage" when compared to persons who are not disabled. "Substantial", for Equality Act purposes, means "more than minor or trivial". This is a low threshold, so it will often be fairly straightforward for an employment tribunal to conclude that a claimant suffered such a disadvantage.

The person must be at a substantial disadvantage compared to others who are otherwise in the same position, not in comparison to the population generally. By way of illustration, in one case a salesman was withdrawn from a training course because, due to his disability, he was unable to carry full-size radiator cabinets. The Claimant was not at a substantial disadvantage compared with the population generally, as most people would have struggled to carry the radiator cabinet, but he was nevertheless held to be at a substantial disadvantage because he was disadvantaged compared to the other training course participants, who were able to carry the cabinets.

Knowledge

Another factor which often emerges in disputes over reasonable adjustments is whether the employer knew that the employee had a disability. Knowledge in this context includes constructive knowledge. This is broader than actual knowledge; ought the employer, reasonably, to have known that the employee was disabled?

Knowledge is important because the duty to make reasonable adjustments is triggered where the employer knows, or could reasonably be expected to know, that (1) an employee has a disability and (2) is likely to be placed at a substantial disadvantage. The employer needs to have knowledge of both aspects.

Asking questions about disability

Most employers will ask at the application stage if an individual has a disability which requires reasonable adjustments at interview. Employers will need to ensure that the questions comply with s.60 of the Equality Act around pre-employment health enquiries and that the health information that is supplied is processed in accordance with the enhanced data protection framework required with special category data.

Questions regarding disability may also be asked once an offer of employment has been made to determine whether adjustments may be required to the role. At whatever stage an employer asks for information about disability they need to be careful to make it clear whether this is purely for equality monitoring purposes or whether this information is passed to HR and saved within the individual’s personnel records. For example, a dispute could arise around constructive knowledge if an employee ticks a box in the application form saying they are disabled, thinking this will be passed to their future manager, but in fact the information is not sent anywhere and is used  purely for equality monitoring purposes.

As a matter of general policy, it is best practice to ask all applicants and new employees to disclose a disability, but they are under no obligation to do so. The Equality and Human Rights Commission (EHRC) Code of Practice on Employment (the Code) states that:

“The employer must…do all they can reasonably be expected to do to find out whether this is the case [i.e. whether the worker has a disability and is, or is likely to be, placed at a substantial disadvantage]. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

The Code then discusses the example of an employee in their customer service centre who sometimes cries at work because of her depression. Although she has not told her employers she suffers from depression it would be reasonable for her employers to discuss whether her crying is connected to a disability and whether reasonable adjustments could be made.

What happens if an employee does not disclose their disability at an early stage of employment?

In our experience it is not uncommon for employers to find that an employee only shares details of their disability or long-term health condition when an HR process has been triggered; for example, during a performance management or redundancy process.

A December 2022 YouGov survey found that only 23% of disabled people would disclose their disability in a job application, while a separate survey by Bupa found that 43% of employees with a “less visible” disability had not disclosed it to their employer. It was also reported that 26% had used annual leave to attend medical appointments and that 23% had given a false reason for not being able to work while they were ill, in order to avoid disclosing their disability.

If an employee does choose to disclose their disability at a later stage, then best practice is to request medical information to support this either via occupational health or their doctor. If the issue is contested, then advice should be taken to consider the individual facts of the case.

Making the adjustment

The application of the duty to make reasonable adjustments can require managers to apply a different mindset, because it involves the application of discretion, and treating people differently, and in some cases not following a policy. This is contrary to guidance often given to managers to treat people consistently. Careful preparation and training of managers of disabled employees can be extremely helpful here.

The duty itself is wide ranging and can in some cases be perceived as positive discrimination, which may be uncomfortable for some (including employees for whom adjustments are made).

The duty can involve changes to the way a policy is applied towards a disabled employee (e.g. a sickness absence policy), in addition to adjustments to their role, such as reduced hours, taking breaks, altering tasks, writing out instructions or even adjusting duties. There may be a need for a protocol regarding days when the employee’s condition is worse. In all regards, communication will be paramount.

How does a manager decide what is reasonable?

A difficult question, but there is guidance available, and it will be the role of HR to support the manager through the process. The Code has a list of factors that managers should consider when deciding whether a request is reasonable, that should also help. Wider workplace culture may also be relevant here, with some employers being more open to pushing further to facilitate inclusion.

Whatever the organisation’s approach, the Code says the following factors should be considered:

• whether taking any particular steps would be effective in preventing the substantial disadvantage – this may be a chicken and egg question, but dialogue with the employee will be key;
• the practicability of the step;
• the financial and other costs of making the adjustment and the extent of any disruption caused;
• the extent of the employer's financial or other resources;
• the availability to the employer of financial or other assistance to help make an adjustment – for example, Access to Work may be able to assist; and
• the type and size of the employer.

Cost is only one of several factors, and should not be overly relied on. The Code says that "even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms - for example, compared with the costs of recruiting and training a new member of staff - and so may still be a reasonable adjustment to have to make." Cost is likely to be decisive only in exceptional circumstances. In one case, there was no failure to make reasonable adjustments where the cost of providing a lip speaker for a deaf employee who was going to be posted abroad would cost £250,000 a year.

Putting the above into practice

One way to most successfully make effective reasonable adjustments can be to make an organisational decision to broaden out the adjustments process to encompass all employees with a health condition, mental health condition or neurodivergence, should they wish to utilise this option. There can be many potential benefits to this approach, including saving employers from trying to decide whether a particular employee’s health condition would constitute a disability (and the legal hurdles this involves), as well as promoting inclusion in the workplace (and likely fostering loyalty and social cohesion as a result).

Another approach which has gained traction recently is the concept of a “reasonable adjustments passport”. This is essentially a document on an employee’s HR file which contains a record of any adjustments, however small, which have been put in place for the employee. This means that whenever an employee goes through an HR process, changes manager or gains promotion into a new team, they do not need to go through the potentially stressful process of requesting reasonable adjustments again; their new manager should be aware in advance and the adjustments should be implemented without the employee having to ask.

Practical tips around making reasonable adjustments

• The onus is on the employer to suggest the reasonable adjustments once they know the employee is disabled – not the other way round.
• It is good practice to discuss the proposals with the employee, and if necessary, make enquiries with the employee (or job applicant) to understand more about their disability and the disadvantage they face. Clearly this has to be handled sensitively and in confidence.
• OH should in some cases be involved in suggesting reasonable adjustments and it is helpful to give them detailed information at the referral stage to assist them with this process.
• Knowledge of the disability is a key issue here and it can be challenging in a large organisation when people move roles. If the employer knows of the disability, then any new manager would be deemed in law to know about an employee’s disability, so it is important this information is shared when an employee moves roles. Again, this needs to be done sensitively and confidentially and any sharing of medical information should be on a need-to-know basis because health information is special category data under the UK GDPR.
• Trial adjustment periods are often better than saying no and not trying the adjustment at all. A compromise and alternative options are worth exploring to demonstrate that reasonable adjustments have been explored.

This Law-Now sets out the legal framework on reasonable adjustments. In the second part of our series, we will discuss cases on reasonable adjustments to help put the law in context.