We republish an Article published by Legal Island (www.legalisland.com ) by the Corporate Legal Services Department of PwC setting out advice in relation to the law on disability and reasonable adjustments in the workplace.
INTRODUCTION
The Disability Discrimination Act 1995 (DDA) imposes a duty on employers to make reasonable adjustments to premises or working practices to take account of the needs of a disabled employee or job applicant.
Where “a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect” (section 4A(1), DDA).
The leading case in this area is Archibald v Fife Council [2004] UKHL. It set out that the duty to make an adjustment is triggered where an employee becomes so disabled that they can no longer meet the requirements of the job description.
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An employer is under a duty to take such steps as are reasonable to prevent any provision, criterion or practice applied for or on his behalf, or any physical feature of the employer’s premises from placing a disabled person at a substantial disadvantage in comparison with people who are not disabled. Where such a duty has arisen the tribunal must decide whether it is reasonable for an employer to make any particular adjustment. In doing so, the tribunal must consider the factors set out in Section 18B of the DDA. Examples of steps which employers should take include:
* allocating some of the disabled person’s duties to other persons,
* making adjustments to premises,
* transferring the disabled person to fill an existing vacancy,
* altering the disabled person’s hours of working or training or acquiring or modifying equipment.
In the work environment, employers are used to dealing with amendments and changes to the layout of buildings, such as widening doorways and providing lifts. But some can fall down on their ability to identify or consider other adjustments which could be made to assist employees with disabilities perform their work. This is short sighted at best but it could fuel a disability discrimination claim where a reasonable adjustment could have been made to alleviate working issues.
TECHNOLOGICAL ADVANCES
Technological advancements have widened the potential adjustments an employer can make to enable a disabled employee to perform their role. The DDA sets out “acquiring or modifying equipment”, “modifying instructions or reference manuals” and “providing a reader or interpreter” as possible examples of adjustments which could be made.
From a technological perspective, it is foreseeable where this would fit in with the requirement to make a reasonable adjustment. The requirements to consider making reasonable adjustments occur right from the outset of the recruitment process and continue throughout the employment relationship. The employer is therefore required to address any particular needs the employee has and any adjustments that will assist them in undertaking their work. This can range from relatively simple things such as giving a dyslexic applicant more time to undertake a test at the recruitment stage, to considering whether the ergonomics of his keyboard and/or working environment need to be adjusted.
ADVICE
Employers cannot be expected to have detailed knowledge about any particular disability an employee has. But there is a lot of assistance available from disability specific charitable organisations who can assist in identifying practical things which can be adjusted to allow the employee to do their job. “Access to Work” is a government scheme which aims to help employers and employees by offering advice and in many cases part funding of any costs incurred in making an adjustment. As is typical in these cases, the smaller the employer, the higher the amount of funding available.
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Some employers go wrong from the outset by failing to ask the employee with the disability what their views are on any adjustments which could be made. Often the employee will have a very different view of what is needed as compared to the employer and in many cases, their suggested solution may be much more simple and effective than that envisaged by the employer.
Technological changes have meant that few employees always need to be in the workplace. Business can now just as easily be conducted by telephone, by video conferencing or by email. With workplaces now also predominately being linked to internet access, employees can work much more flexibly than ever before. Whilst this is advantageous to all employees, it is particularly relevant to those who have limited mobility and might be a reasonable adjustment which could be made to aid their ability to work.
LIMITATIONS
There are a number of things which tribunals take into account when deciding whether an adjustment should or should not have been made. In terms of the aim of the adjustment, case-law guidance over the years (Tameside Hospital NHS Foundation Trust v Mylott [2010] UKEAT) indicates that reasonable adjustments are steps that can be made which make it possible for an employee to remain in employment.
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Cost will also be considered and the DDA states that this includes “financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities”. The financial resources of the employer will be taken into account but they are not the most persuasive factor as the case of Cordell v Foreign & Commonwealth Office illustrates. Other factors are the nature and size of the undertaking and the extent of the employers’ financial and other resources and indeed the practicability of taking the step.
Accordingly, if a potential adjustment is not going to actually cure or at the very least limit the substantial disadvantage suffered by the employee, it should not matter how big or small the organisation or what their resources are, if the adjustment does not actually alleviate or cure the substantial disadvantage then it is of course futile to make it.