It is well known that, under the Equality Act 2010, an employer is under a duty to make reasonable adjustments in relation to a disabled person. It is less well known what this means in practice and when the duty actually applies.
The purpose of the duty is to assist disabled persons overcome substantial disadvantages that they suffer in the workplace. However, whilst a fundamental requirement is that the person is disabled for the purposes of the Equality Act 2010, an employer is not automatically under a duty to make adjustments and this is often misunderstood, leading to some employers finding that the duty to make reasonable adjustments is onerous and employees making requests of an employer or bringing claims against an employer when, in fact, the duty to make reasonable adjustments has not been triggered.
There are a number of pre-requisites to the duty to make reasonable adjustments arising, only one of which is that the individual must be a disabled person for the purposes of the Equality Act 2010. Here is a brief guide to the key requirements:
1. Does the employer have requisite knowledge?
By its very nature, the duty imposes a positive obligation on employers to do something to assist relevant individuals where they suffer a substantial disadvantage in the workplace. So, to do so, the employer must have knowledge of the person having a disability and knowledge that the individual is suffering a substantial disadvantage in the workplace because of the disability before the duty can arise.
However, employers beware – an employer cannot deliberately seek to close its eyes to what is obvious. Knowledge will be implied where the employer could reasonably be expected to have such knowledge, for example, by taking further steps to find out the relevant information and had systems in place to do so. This is not to say that an employer will be expected to be a medical expert but it will be expected to make further enquiries about the nature of the ill-health, either from a medical professional or the individual themselves, and to ask questions which would help the employer understand the nature of the illness, how long it is likely to last and the likely impact of the illness on the individual’s day to day activities.
It is worth noting that a failure to co-operate with an employer’s medical expert may remove inference of knowledge from an employer so this is one of many good reasons why individuals should co-operate with the employer’s requests for medical referral.
2. Is there a substantial disadvantage in the workplace?
For the duty to arise, the disadvantage must relate to a provision, criterion or practice (PCP) or a physical feature of the employer’s premises. If an individual has an auxiliary aid, such as specialist equipment, an employer should consider what disadvantage would be suffered if it was not provided. This often requires dialogue with the individual so the full extent of the alleged disadvantage is understood and can be responded to.
A PCP is construed widely so it could include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions. However, not everything an employer does, or does not do, will amount to a PCP. It must be work related and so there is no requirement to provide or modify equipment for personal purposes where this is unconnected with a worker’s job, such as providing a wheelchair if a person needs one but does not have one. This is because the disadvantages do not flow from the employer’s arrangements or premises.
Even then, the duty arises only where there is a “substantial” disadvantage. This means that the disadvantage is one that is more than minor or trivial and to ascertain if disadvantage is suffered, there is a point of comparison between the disabled individual and another person in similar circumstances who is not disabled. If a non-disabled person suffers the same disadvantage, the disadvantage is not disability related and the duty does not arise.
3. Is the adjustment reasonable?
The duty to make adjustments applies only so far as that adjustment is a reasonable one to make.
What is “reasonable” depends on the factual circumstances but factors are likely to include whether the adjustment would have improved or removed the disadvantage, practicalities and level of disruption in making the adjustment, financial considerations and the availability of resources to make the adjustment. The adjustment need not alleviate the disadvantage entirely, but should have at least a “prospect” of helping the individual to improve the disadvantage suffered for it to be reasonable.
Advice to Employers
The duty to make reasonable adjustments is not unreasonable – it makes a lot of sense and can be very helpful to all parties – but this is not to say that all requests by individuals are reasonable or that it can sometimes appear onerous and difficult. However, the questions to be asked of medical experts and the individual should normally be asked as part of a fair capability process anyway.
Whilst in practice employers will often obtain an expert medical opinion, the timing of the referral and the specific questions which are asked will make all the difference between a useful report (and makes the assessment of whether there is a duty to make adjustments less onerous and confusing) and one which is fairly inconclusive.
So, employers, when faced with requests for adjustments, consider whether each of the above requirements are met. The assessment as to whether the duty arises in each particular case rests solely with the employer, taking heed of any advice and all the factual circumstances. When a final determination is made in Tribunal, it is too late if you have got it wrong so make best use of your enquiries with the individual and medical experts and if in doubt, seek legal advice as this is issue is not as straightforward as it first seems!
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