Disability inclusion: reasonable adjustments in practice

This is the second in our series on the duty to make reasonable adjustments, looking at supporting employees with disability as part of an “S” in ESG strategy. Part one covered the legal framework and statutory definitions. This Law-Now works through some of the challenges employers experience when considering adjustments, drawing on examples from case law.

Disability

To recap, the duty to make reasonable adjustments only arises if an individual meets the legal definition of “disability” under s.6 of the Equality Act 2010, and the employer has actual or constructive knowledge of the disability and the substantial disadvantage suffered by the employee.

Constructive knowledge

An employer is required to make reasonable adjustments if they knew or ought reasonably to have known that the employee was disabled. Where an employer ought reasonably to have known that an employee was disabled, this is referred to as “constructive knowledge”.

This can be challenging to navigate in practice, particularly where an employee is resistant to disclosing medical information. There can be a nervousness from managers on making assumptions around ill health, particularly of suggesting that there may be a mental health concern.

However, in some cases an employer will be deemed to have constructive knowledge of disability even if the employee has not disclosed their medical condition. For example, in DWP v Hall, it was held that an employer had constructive knowledge of disability although the employee had not informed them of her psychiatric condition. The Tribunal held that the employee’s refusal to let her employer access her medical records paired with her volatile behaviour should have been a “warning sign” of an underlying medical condition.

The role of Occupational Health

Employers should also bear in mind that even if Occupational Health (OH) advice states that an employee is not disabled, there can still be an obligation on the employer to make further enquiries. In Gallop v Newport City Council, the Court of Appeal said that it is the employer, not the medical adviser, which is responsible for making a judgement on whether an employee is disabled. This means that when making a referral to OH, it is good practice to ask not just whether OH considers the employee to be disabled, but also to ask more specific questions about whether the employee has an impairment and the effects of such an impairment on the employee. The answers to those questions will help an employer to come to its own conclusion on whether an employee’s condition meets the legal definition of disability.

The duty

As discussed in more detail in part one, 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.

What is a reasonable adjustment?

What is reasonable will always be dependent on the specific circumstances, which means that it is impossible to set out an exhaustive list of possible reasonable adjustments. However, to illustrate the types of adjustments which might be reasonable, and the sorts of factors Tribunals consider in making this assessment, we have set out some examples from case law below.

Physical adjustments

Perhaps the most obvious example of a reasonable adjustment is a physical adjustment or aid provided by an employer to help mitigate the effects of an employee’s disability.

For example, in Kelly v London Underground, the Respondent failed in its duty to make reasonable adjustments for an employee with hearing loss who worked as an Area Manager. The Respondent had failed to fund the cost of the claimant’s hearing aids and failed to provide him with voice-to-text software for meetings so that he could effectively catch-up on anything he had not properly heard. While the Tribunal acknowledged that the Respondent had budgetary constraints following the Covid-19 pandemic, it nevertheless found that the cost of the hearing aids (which exceeded £1,000) was still relatively low, particularly when compared with the cost of recruiting someone else to fill the claimant’s role if he could no longer perform it.

Other examples of physical adjustments might be things like the provision of a specialised chair or a standing desk to an employee who has a back condition, a specialised computer keyboard to an employee with carpal tunnel syndrome, or provision of a stairlift for an employee who is unable to climb stairs.

Placing employee into a new role

In Archibald v Fife Council, the claimant was unable to continue in her role as a roadsweeper following surgery which led to difficulties walking. She applied for over 100 alternative administration roles with the same employer but was unsuccessful and was eventually dismissed for capability. The House of Lords ruled that a reasonable adjustment would have involved placing the claimant into a redeployed role without a competitive interview, even where the administration roles involved a slightly higher grade. The claimant had been given training on administrative work and had been assessed as being capable of carrying out work in an office environment. That is not to say that employers will always be expected to place employees into alternative roles in circumstances where their disability makes it difficult or impossible to carry out their original role. It is always a case-by-case assessment. In another case, Wade v Sheffield Hallam University, the EAT held that an employer had not failed in its duty to make reasonable adjustments by failing to waive a competitive interview process for an internal vacancy. This was because the employer had carefully considered doing so but had genuinely considered that the employee was unsuitable for the job.

Remote or flexible working

In many cases, allowing an employee to work flexibly or work from home some or all of the time will be a reasonable adjustment. However, this will not always be the case; a Tribunal will look at the overall circumstances, including the effect on the employer’s business. In one case, Shah v TIAA Limited, an audit manager’s role involved frequent travelling to client locations. She requested to work from home due to severe back problems which made travelling difficult. However, the employer operated on a system whereby employees in the claimant’s role had to work 150 chargeable days per year. Without visiting client sites, it was not possible for her to meet her chargeable hours target. This meant the organisation was making a shortfall by employing her, i.e. her salary cost more than the revenue she generated in client fees. The Tribunal held that in those circumstances, it was not reasonable for her employer to allow her to work from home.

By contrast, in Lee v Northern Care Alliance NHS Foundation Trust, an employee who worked as a Medical Personal Assistant had physical disabilities which meant she was at a significantly higher risk during the pandemic than others. Although the claimant was not subject to any disciplinary proceedings or other repercussions when she failed to attend the office, she was also not given any work to do from home even though her job would have been suitable for home working. The claimant was not provided with appropriate IT equipment, and a clear job specification had not been provided which was necessary for her colleagues to understand what her role was so that she would receive work to do. The Respondent had therefore failed in its duty to make reasonable adjustments.

In another case, Caen v RBS Insurance Services Ltd, an insurance claims handler who experienced depression and agoraphobia had difficulty driving when there were other cars on the road. She had been allowed to work between 06:30 and 14:00 in order to avoid other cars during her commute, but when the employer changed its working patterns it said that she could not start work any earlier than 07:30. The Tribunal held that the employer had failed in its duty to make reasonable adjustments by refusing to allow her to start work at 06:30. There was no logical reason why she could start at 07:30 but not 06:30.

Reallocating duties  

It is common for employees to request for the scope of their duties to be amended as a reasonable adjustment. For example, in a case where an employee develops a physical disability part way through their employment, it might be reasonable to amend their duties so that any physical aspects of their job are undertaken by somebody else.

However, the employer’s position will always be relevant to this assessment. What is reasonable for a large employer with extensive resources may not be reasonable for a smaller employer. For example, in Parker v Oak Cash and Carry Ltd, a shop assistant had problems with her back and neck. She asked to work only on tills, and not to have to cover other duties which might aggravate her condition. Her employer refused to allow her to do so. In those circumstances it was held that allowing her to work only on tills would not have been a reasonable adjustment. That was because due to the small number of staff, it was necessary for all employees working on tills to take on other duties during quiet periods. If the individual had been allowed not to do so, this would have increased the employer’s costs and would also have caused issues with the other employees because their duties would have been less varied.

Adjusting processes

In addition to making certain reasonable adjustments to disabled employees’ terms of employment, role or responsibilities, there may also be circumstances in which an employer needs to consider making reasonable adjustments to its processes, including in the context of a disciplinary issue arising.

For example, in Borg-Neal v Lloyds Bank plc, a long-serving dyslexic employee was dismissed for using a racial slur during race equality training. The context was that he was asking how he should deal with someone who used that offensive word, and he immediately apologised. However, the employer dismissed him. The Tribunal upheld his claims of unfair dismissal and disability discrimination. It found that his misuse of language was consistent with his dyslexia, and it was not reasonable to dismiss him in the circumstances. This case demonstrates that context is everything when it comes to comments like this, and that a zero tolerance approach to harassment, may also need to take disability into consideration and adjust the sanction applied.

Likewise, there may be disciplinary and grievance situations involving disabled employees which require employers to consider whether they should adjust how they normally operate. In particular for neurodivergent colleagues, it is worth considering adjustments such as dispensing with the need for face-to-face interviews (and potentially allowing the employee to answer questions by email), scheduling longer meetings to allow for breaks (or even scheduling meetings in two or more parts) and considering whether a disabled employee should be allowed a friend or family member as their companion.

Comment

This series is intended to give employers a flavour of the types of adjustments required to support their employees, at the same time achieving their ESG objectives by increasing inclusion and participation of those with disabilities in the workplace. It is not intended to be an exhaustive list of potential reasonable adjustments and, as we have explained, each case is fact specific and context dependent. Most reasonable adjustments are agreed and implemented, and case law only shows situations where parties don’t agree.

However, cases are useful by illustrating how far an employer is expected to go when making adjustments. Getting it wrong can lead to claims and be costly and time consuming. Often what is needed is a fresh perspective at an early stage when disputes arise over the nature of reasonable adjustments. Managers who are directly involved can sometimes feel that employees are asking too much and become entrenched.

Involving OH, HR, the employee disability network or an external specialist agency may be an option to look at the issue. Educating staff on the duty to make reasonable adjustments and the positive obligation this places on employers will also be useful. In some cases, it will be necessary to take legal advice. Please do speak to one of the CMS employment team if we can assist you.