The duty to make reasonable adjustments The most important part of the law against disability discrimination is the duty on employers to make reasonable adjustments. Basically this means that, where workers are disadvantaged by workplace practices because of their disability, employers must take reasonable steps, eg by adjusting hours or duties, buying or modifying equipment or allowing time off, so that they can carry out their job. The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take in order to avoid the disadvantage. ”
“The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take in order to avoid the disadvantage. “The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to provide the auxiliary aid. ” Provided an adjustment would be reasonable, an employer has no defence of justification for not carrying it out. Employers are expected to act positively and constructively. In the key case of Archibald v Fife Council, the House of Lords said:
The DDA does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination. ” The ‘DDA’ has now become the EqA, but the point remains. The House of Lords’ use of the term “positive discrimination” is unfortunate. It is simply a case of removing unnecessary barriers, to place disabled people on an equal ooting. However, it does illustrate how far employers must go.
The Employment Code lists the following possible adjustments, giving an example for each. Previously most of these adjustments were written into the Disability Discrimination Act. It should not make any difference that they are now in the Code rather than in the statute. * making adjustments to premises * providing information in accessible formats * allocating some of the worker’s duties to another person * transferring the worker to fill an existing vacancy * altering the worker’s hours of working or training assigning the worker to a different place of work or training or allowing home working * allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment * allowing the worker to take a period of disability leave * giving, or arranging for, training or mentoring (whether for the disabled worker or any other person) * acquiring or modifying equipment
* modifying procedures for testing or assessment * providing a reader or interpreter * providing supervision or other support * employing a support worker to assist a disabled worker * modifying disciplinary or grievance procedures modifying performance-related pay arrangements * adjusting redundancy selection criteria * participating in supported employment schemes such as Workstep The Code points out that it may sometimes be necessary for an employer to take a combination of steps. Where an employee becomes so disabled that s/he is no longer able to do his/her job at all, a reasonable adjustment may be to move him/her to another job, even at a slightly higher grade, without competitive interview. An employer must not give priority to other categories of redeployee, eg those at risk of redundancy, over a disabled worker.
Paying full pay is a potential reasonable adjustment, where the worker is off sick because other reasonable adjustments have not been made. In other circumstances, it will rarely be a reasonable adjustment to pay full pay for disability-related absence if there is no contractual entitlement. The duty is restricted to job-related matters and does not extend to: * Providing a carer for a worker’s personal and toilet needs. However, there may be a duty to provide accessible toilets or accommodate a carer who the worker brings with him/her. Providing transport to and from work (as opposed to assisting with travel while at work). * Offering ill-health retirement. Where it is necessary to make adjustments to premises which are occupied under a lease, there are special rules enabling such adjustments to be made, even where the lease forbids it or the landlord unreasonably withholds consent. How much must an employer do? A tribunal will decide on the facts of each individual case how much the employer ought to have done by way of reasonable adjustment. What kind of adjustments?
The Employment Code lists factors which a tribunal may take into account when deciding whether an adjustment would have been reasonable: * whether taking any particular step would be effective in preventing the substantial disadvantage * 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, eg advice from Access to Work * the type and size of the employer. The employer’s resources
A large employer with substantial financial resources is more likely than a small employer to have to make adjustments which are very expensive. If a shop or restaurant is part of a chain, the resources of the whole chain will be taken into account. An employer cannot hide behind a set budget. All relevant factors will be considered in each case. In fact, reasonable adjustments often involve little or no cost or disruption. Available grants from the Access to Work Scheme The Access to Work programme is administered through Jobcentre Plus and may provide grants towards the cost of various adjustments.
Many employers are unaware of the existence of Access to Work. Workers are eligible if they have a disability or health condition which affects their work and is likely to last for at least 12 months. It applies to any paid job or interview for that job, whether full-time or part-time, permanent or temporary. It does not matter whether they are already in a job or about to start. The programme may provide a grant towards various adjustments including adapting premises; adapting or purchasing equipment; providing readers or interpreters; and additional travel costs to work.
For workers starting new jobs or in their first 6 weeks, the programme can pay up to 100% of approved costs. For those already in a job for more than 6 weeks, it will pay a proportion of the costs, so that the employer pays the balance. The precise level of cost sharing depends on the size of the employer. The programme will also pay approved costs up to 100% for help with support workers, fares to work and support at interviews. Usually the employer then purchases the equipment, etc and reclaims the grant from Access to Work.
Grants will be reviewed after 1 – 3 years. To get advice about the scheme and an assessment of the worker’s needs, the worker needs to fill in an application form and s/he will then be contacted by an Access to Work adviser. A Jobcentre Plus office, Disability Employment Adviser (see below) or Access to Work contact centre can give contact details. The adviser will then usually speak to the worker and to the employer on the telephone, and visit the workplace if necessary. The Access to Work adviser can also arrange specialist or technical advice if it is needed.
For example, if the adviser is unable to make his/her own assessment as to what is needed for a particular worker who is blind, s/he may arrange for the RNIB to make an assessment and appropriate recommendation. Once the Access to Work adviser has decided on the appropriate level of support, s/he gets formal approval from Jobcentre Plus. S/he then sends a letter to the worker and the employer setting out the available grant. It is the employer’s responsibility to buy the necessary equipment and reclaim approved costs from Access to Work. atest details on levels and eligibility for grants, it is important to check with an Access to Work Adviser. What if the employer doesn’t know? The employer is not under a duty to make reasonable adjustment if s/he does not know and cannot reasonably be expected to know that: 1. the worker has a disability and 2. the worker is likely to be placed at a substantial disadvantage as a result. The legal position is uncertain where HR or occupational health are aware of the worker’s disability and need for adjustments, but the actual decision-makers, such as the worker’s managers, are not.
A worker is not generally obliged to tell an employer that s/he has a disability. But for the above reasons, if s/he needs adjustments to be made, s/he would be wise to tell the employer clearly in writing that s/he is disabled, the nature of the problem and any adjustment s/he knows would help. Although an employer has a duty to make reasonable enquiries based on information given to him/her, there is no absolute onus on the employer to make every enquiry possible. With regard to job applicants, the wording in the Equality Act is slightly different regarding the required knowledge.
An employer is under no duty to make reasonable adjustments if s/he does not know and could not reasonably be expected to know that a disabled person was or might be a job applicant. * In the employment field, there is no open-ended duty to make adjustments, eg to provide all literature in different formats. The duty is owed to a particular worker or job applicant whom the employer knows has a disability and is likely to be disadvantaged. * The duty to make reasonable adjustments also applies where the worker is a contract worker, eg employed by a contracted-out company or an agency.
Obviously the reasonableness of any adjustment will be linked to how long the contract worker will be working for the principal. * The tribunal will reach its own decision on what adjustments would have been reasonable. Unlike unfair dismissal law, for example, the tribunal should substitute its own decision for that of the employer as to what is reasonable. It is an objective test. * When running a case, the worker must give at least a broad idea of what adjustments would have been useful, so that the employer knows what allegation s/he has to meet.
The amount of detail which the worker needs to give to reverse the burden of proof depends on the nature of the disability. A subtle disability would require more than basic details. It is not essential that the proposed adjustment was identified at the time. It might not be identified until the tribunal case. In certain circumstances, eg with an unrepresented claimant, it may even be appropriate for the tribunal to raise the suggestion itself, as long as the employer has a proper opportunity of answering the point.
STAGES WHICH A TRIBUNAL SHOULD FOLLOW IN DECIDING WHETHER THERE HAS BEEN A FAILURE TO MAKE REASONABLE ADJUSTMENT| * Identify the provision criterion or practice applied by or on behalf of the employer or the physical feature of the premises, or the lack of an auxiliary aid, which is causing the difficulty. * Identify the nature and extent of the substantial disadvantage suffered by the worker because of his/her disability as a result of the provision, criterion, practice or physical feature or lack of an auxiliary aid. * If appropriate, identify a non-disabled comparator who is not disadvantaged by such provision etc.
Decide what adjustments would have been reasonable to prevent such a provision etc disadvantaging the worker. * A tribunal cannot just make a general finding that the employer should have made reasonable adjustments. It needs to identify to some extent what the employer should have done. The level of detail depends on the case. In some cases, it is enough to say the employer should have found the worker an alternative job. In other cases, the tribunal should identify precisely what other job should have been offered to the worker. | Pitfalls Where people sometimes go wrong is in failing to follow these stages.
The fact that a disabled worker is under stress at work or unable to do what is required is not necessarily connected with his/her disability. For example, a disabled worker may be unable to achieve targets set by the employer, but is this because of his/her disability? Maybe s/he is just not very good at that particular job. Or maybe the targets are unrealistic for everyone. In this example, the provision, criterion or practice causing the difficulty is the requirement to achieve certain targets. But the extent of the worker’s disadvantage is not because of his/her disability.
A non-disabled worker who otherwise had the same skills, knowledge and ability as the disabled worker would also be unable to meet that target. The duty to make reasonable adjustments therefore does not arise. The other thing that goes wrong is not making a proper connection between the suggested reasonable adjustments and the nature of the worker’s disadvantage. In order to establish what sort of adjustment should be made, it is necessary to understand the effects of the worker’s disability and exactly what it is about the employer’s requirements or workplace set-up which is causing the difficulty.
For example, if a worker with a severe back impairment wants to work at home, the relevant provision, criterion or practice could be the employer’s insistence that s/he work at the office. But what is it about working at the office which causes difficulty and which could be resolved by working at home? Is it the travel in and out? Is it the type of office furniture? Is it the lack of anywhere to lie down? Is it insufficient breaks? Let’s say it is the office furniture. Can the worker prove the furniture is causing him/her back problems? Is there the possibility of different furniture at work? Why does s/he need to work at home?
Is the furniture at home any better? All this needs to be examined in detail. Reasonable adjustments: some ideas appropriate to many disabilities The Employment Code lists possible reasonable adjustments, but these are only suggestions. A tribunal may think a certain adjustment should have been made which is outside that list. The following expands on some of those suggestions, and adds a few more ideas. There are also further suggestions specific to different disabilities in the Directory of Impairments in the second half of this Guide. Remember that any of the options could be carried out on a temporary, occasional or permanent basis.
As most conditions vary greatly in their severity and in the symptoms for every individual, it is essential that advisers ask disabled workers what areas of difficulty they have at work and which solutions might be useful. It is also important that an employer does not make assumptions. An employer should start by carrying out a proper assessment (sometimes known as a “risk assessment”) of what may be required. Failure to do such an assessment is not usually regarded in itself as a failure to make reasonable adjustment, but it is likely to lead to such a failure. Flexible hours, work schedules and breaks
This may entail allowing the worker to work part-time, fewer hours or to job share, or to alter hours, eg to avoid rush-hour travel or because s/he feels less well in mornings or evenings. The worker may find it suitable to spread the work over a longer period with more frequent breaks. Workers with only episodic attacks, eg asthma or migraine, may be happy to make up the hours on other occasions, although this is not to suggest they are not entitled to sick leave. Whether an employer should continue to pay the full rate of pay, even though the worker is working shortened hours, is a matter of what is reasonable in every case.
Employers should be relatively receptive to the idea of allowing flexible working. In a survey by the Department of Work and Pensions (DWP), 55% of employers operated flexible working time. 57% of those who employed no disabled workers thought different hours or flexi-time would be easy to introduce. Moreover, employers are getting used to the idea in the context of the right to request flexible working for childcare or to care for older relatives. The Employment Code gives these suggestions: * Allowing the worker to work flexible hours so s/he can have additional breaks. * Permitting part-time working. Allowing different working hours to avoid rush hour travel. Home working Employers may be more resistant to the idea of home working. In the DWP survey mentioned above, only 12% of employers allowed home working and 52% thought it would be impossible. However, a more recent CBI/Pertemps Employment Trends Survey shows the use of teleworking (ie working on the move or from home) has quadrupled since 2004 and is now offered by 46% of employers. Obviously it depends on the job, but with the advent of sophisticated IT technology, it is becoming more feasible than employers’ first reaction might always suggest.
Home working, on a temporary, permanent or part-time basis, is a very useful solution for a number of conditions, because it gives increased flexibility in hours, cuts out difficult travel and may provide a more conducive environment. Despite the reluctance of employers, it is a suggestion which comes up frequently in the tribunal. Home working, at least temporarily, is suggested as a possibility in some circumstances. Disability leave It is wrong to assume that a disabled worker will be absent from work any more than anyone else.
However, it is possible in some cases that the worker will need additional time off, either because of illness related to the disability, eg asthma or migraine attacks, or for routine medical checks, eg to have a hearing aid checked with an audiologist. The Employment Code suggests allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment. This may entail a single period of disability leave, eg for a period of treatment, rehabilitation or adjustment when someone is newly disabled, or intermittent days.
Many employers have a sickness attendance policy whereby workers are monitored, counselled, disciplined and eventually dismissed, as their absence level reaches certain levels. An employer would probably be expected to make a reasonable adjustment by not counting a certain amount of leave for disability-related reasons into such a scheme or, even better, by having a separate scheme for disability-related absence. However, this is not complete protection. Tribunals are unlikely to accept that an employer can never act on any absences, however long, just because they are disability-related.
There is no clear guidance in the Employment Code as to how much extra absence it would be reasonable for an employer to allow. It all depends on the circumstances. It will rarely be a reasonable adjustment to pay a worker for disability-related absence, if s/he has no general contractual right to paid sick leave. But if the whole reason the worker is off sick is because the employer has failed to make the reasonable adjustments which would enable him/her to return to work, there is a good argument that s/he should receive full sick pay. Gradual return to work
Where the worker has been absent for some time due to his/her disability, a phased return to work is likely to be a desirable option. The return can be phased in terms of number of daily hours, number of days/week or type of duties taken on. It can be combined with partial home working. In a case where a secretary had been absent for some while with depression, the EAT suggested that a phased return to work might be a reasonable adjustment. However, the tribunal is unlikely to accept that this is a reasonable adjustment if the worker cannot suggest a date when s/he will be ready to start the phased return.
Reallocation of some duties It may also be possible for the worker to swap certain duties with a colleague on a temporary or permanent basis. Transfer to another job It is unlikely that a tribunal would expect an employer to create an entirely new job for a disabled worker, but it may be a reasonable adjustment to reallocate or swap duties (see above), or to transfer the worker to a different location or to an existing vacancy. It points out that this may entail reasonable adjustments in the new job, eg retraining or provision of special equipment or transfer to a position on a higher grade.
Other adjustments may also be needed to ensure the worker can successfully apply for a post. For example, in a case concerning a worker with colitis, the employer failed to make reasonable adjustment because the interview panel was not informed of the worker’s disability so that the panel could assist him. The worker performed badly at the interview because he was unwell with stress as a result of other failures to make reasonable adjustments. The duty to make reasonable adjustments may go further than enabling the worker to apply for vacancies.
It would be unlawful to give redundant employees priority over any vacancies ahead of a worker needing redeployment due to a disability. Moreover, many tribunals expect a worker to be slotted into an existing suitable vacancy without being interviewed or having to compete for it against workers who do not have a disability. There are strong arguments for this, following the positive approach urged by the House of Lords in the key case of Archibald v Fife Council.
Indeed, in Archibald, the House of Lords said it could be a reasonable adjustment, depending on the circumstances, to move a worker to a slightly higher grade without competitive interview. In that case, a manual worker at the lowest grade had to be transferred to office-based duties, but the lowest grade of the non-manual scale was higher than the lowest manual grade. Acquiring or modifying equipment The range of equipment available is enormous and the specialist disability organisations provide the best advice on what is suitable.
More detail is set out for different disabilities in the Directory of Impairments in the second half of this Guide. Whether or not an employer is expected to provide special equipment will depend on its effectiveness, the cost and the employer’s resources. However, the Access to Work Scheme covers the cost of much of this equipment. Also, if an employer takes a worker on, knowing adjustments will be needed, s/he should see these through. Surprisingly, many cases involve employers’ failure to take relatively inexpensive and easy steps to provide specialist equipment.
The following difficulties are common and could amount to failure to make reasonable adjustments: * The equipment is not ready and in place when the worker starts the new job, even though the employer knew when s/he recruited the worker of the need to acquire such equipment. Often it is left to the worker to make the arrangements. * It takes a considerable time following a request by a worker for the equipment to be supplied. Delays often occur in getting an appropriate assessment or in following up on an assessment and recommendation. The worker often has to make repeated requests. When the equipment eventually arrives, there are delays in getting it installed and further delays in training the worker on its use. * All the above delays lead to stress for the worker, which can exacerbate his/her disability and work performance, and lead to tensions or worse in the working relationship. Training of managers and co-workers The Employment Code suggests giving or arranging training for the disabled worker or anyone else. An example could be the employer providing training for employees in conducting meetings in a way that enables a deaf staff member to participate effectively.
Much discrimination against disabled workers occurs due to lack of awareness of the barriers they face. Training at the outset could make a big difference. Tribunals often suggest that awareness training for managers or co-workers would have been helpful. The Employment Appeal Tribunal in Scotland has said the provision of deafness awareness training for other employees can be a reasonable adjustment, although attendance need not be compulsory. In certain circumstances, one would think that compulsory training, at least of supervisers and managers, would also be a reasonable adjustment.
Linked to this is the need in some circumstances to ensure the co-operation of co-workers with any adjustments. Modifying disciplinary or grievance procedures The Code suggests a worker with learning disability be allowed to bring a friend outside work to act as an advocate for him/her at a grievance meeting. There have been several cases where the tribunals have expected a flexible approach to the handling of disciplinary or grievance procedures, eg (depending on the nature of the worker’s disability): * Relaxing time-limits for lodging grievances and appeals against disciplinary action. Relaxing requirements for format of grievances, eg not insisting on forms being completed. * Ensuring the worker fully understands the issues. Providing interpreters / signers as necessary. Allowing a friend or helper outside work to accompany the worker. * Establishing preferred mode of communication, eg allowing written submissions before or after the hearing rather than relying on oral representations. * Flexibility regarding hearing dates. Waiting until the worker is well enough to attend. * Allowing full preparation time.
The worker should be informed well in advance of the hearing date and sent all relevant papers well in advance. * Not leaving the worker waiting a long time in the waiting room. * Adopting a non-threatening manner and mode of speech. * Allowing more time during the hearing and breaks. * If travel is difficult, conducting the hearing by telephone, at home or at another suitable venue. * Ensuring the worker is not disciplined for conduct which may be reasonably explained by his/her disability, eg a deaf person apparently disobeying a verbal instruction or someone losing their temper when in pain.
The fact that disciplinary proceedings are pending is not necessarily a reason not to proceed with other reasonable adjustments such as relocation. Tribunal adjustments Tribunals and advice agencies must not discriminate in their provision of services to disabled users and clients and must make any necessary reasonable adjustments. Several years ago, the former Disability Rights Commission in conjunction with the Council on Tribunals produced guidance for tribunals to facilitate the full participation of disabled people (parties, witnesses, representatives and public) in the tribunal process.
Making Tribunals Accessible to Disabled People: Guidance on Applying the Disability Discrimination Act. These are both extremely useful documents (even if the former is out of date on details of the law) and you should take copies to any interim or final hearing where a claimant or witness is disabled. The Council’s Guidance identifies aspects of the tribunal process which may present barriers for disabled people. Similar barriers could occur in an advice agency. For example, it is necessary to ensure: physical accessibility to the building and relevant rooms; accessible parking facilities, accessible toilets; * verbal and written communication in accessible formats and user-friendly content; * regular breaks and short waiting times for those with difficulties sitting still for long periods of time or without breaks; and for users with learning difficulties or mental health issues Advisers should inform the tribunal ahead of the hearing about any special requirements which the worker may have. It is worth letting the employer’s representative know in advance too.
A good time to discuss arrangements would be at any case management discussion. The Council’s guidance says tribunals must give proper consideration to requests for reasonable adjustments and if any particular adjustment is refused, explain why. These are some issues it is said the tribunal should bear in mind: * Time-limits for making a claim or various interim steps may not provide enough time for claimants with mental illnesses, learning difficulties or literacy problems to seek advice or for visually impaired parties to get documents in an accessible format. Forms, letters and guides should be provided in alternative formats and hearing venues should be accessible to users with a range of impairments. * Hearings should be guaranteed to start at a certain time and not floating, where a party has difficulty sitting or is in pain generally or liable to get more than usually stressed, eg due to learning difficulties. There should be regular breaks as necessary. * It may be appropriate to conduct the hearing informally where the claimant or witnesses have learning difficulties.
Letters to the employer regarding reasonable adjustments Where an employer is unwilling to make reasonable adjustments despite a worker’s verbal requests, it is a good idea to make a formal written request. This may take the form of a letter or a grievance. It is particularly important to do so because the tribunal has power to reduce a successful claimant’s compensation by up to 25% if s/he unreasonably failed to follow relevant guidance in the ACAS Code of Practice on Disciplinary and Grievance procedures.
The ACAS Code does appear to recommend grievances are taken out where workers have concerns, though It is too early to know how tribunals will interpret the Code in this context. If grievances are written before tribunal cases are started, advisers must be careful that they still comply with tribunal time-limits. http://ebookbrowse. com/proving-disability-and-reasonable-adjustments-workers-guide-final-doc-d326916722