Disability Discrimination guide part 2 - Duty to make reasonable adjustments

In part 1 of our guide to disability discrimination we looked at Discrimination arising from disability.  In part  2 of the guide we examine the duty to make reasonable adjustments.

Background

The Equality Act 2010 ("EqA 2010") unified various pieces of legislation outlawing discrimination against people with different protected characteristics. The protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Duty to make reasonable adjustments

Some categories of discrimination, such as direct discrimination, apply to all protected characteristics. However, the EqA 2010 included two special categories aimed at preventing discrimination against disabled people:

• Discrimination arising from disability (s.15 EqA 2010); and
• Duty to make reasonable adjustments.

Section 20 EqA 2010 imposes a duty on employers to make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances.

When does the reasonable adjustment duty arise?

An employer's duty to make reasonable adjustments can arise in any of the following situations:

• Where a provision, criterion or practice ("PCP") applied by the employer puts a disabled person at a substantial disadvantage compared with non-disabled staff. Here, the employer must take reasonable steps to avoid the disadvantage.
• Where a physical feature of the employer's premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Again, the employer must take reasonable steps to avoid the disadvantage.
• Where a disabled person would, but for the employer's provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled. Here, the employer must take reasonable steps to provide the auxiliary aid.

The duty to make reasonable adjustments will not arise unless the employer knows or ought reasonably to know of the disabled person's disability and that the disabled person is likely to be placed at a substantial disadvantage.

Provision, criterion or practice

The EHRC Code states that the phrase "provision, criterion or practice" (PCP), "should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions."

A PCP would usually be something applied repeatedly by an employer. However, case-law has established that one-off decisions can occasioanllly be a PCP. The more specific a decision is to a particular case the less likely it is to be a PCP. A one-off decision that could equally be applied in similar cases would be more likely to be a PCP. In Ishola v Transport for London [2020] EWCA Civ 112, the Court of Appeal held that the words "act" or "decision" are not used in the legislation. On this basis, it was not appropriate to interpret the phrase "provision, criterion or practice" as encompassing all one-off decisions made by employers.

Physical features

The duty to make reasonable adjustments can arise where a physical feature of the employer's premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. The phrase "physical feature" is defined as:

• A feature arising from the design or construction of a building.
• A feature of an approach to, exit from or access to a building.
• A fixture or fitting, furniture, furnishings, materials, equipment or other chattels, in or on premises.
• Any other physical element or quality.

The EHRC Code provides the following, non-exhaustive list of what can amount to physical features:

"steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture and temporary or movable items".

Auxiliary aids and services

Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled, the employer must take reasonable steps to provide the auxiliary aid.

The EHRC Code states that:

"An auxiliary aid is something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker."

Substantial disadvantage

It is wrong to assume that an employer automatically has a duty to make adjustments once a job applicant or employee is found to be disabled. For the duty to arise, the job applicant or employee must also be placed at a "substantial disadvantage" in comparison with persons who are not disabled. Therefore, a comparative exercise demonstrating substantial disadvantage is required.

"Substantial" is defined as "more than minor or trivial". This is a low threshold.

In Hilaire v Luton Borough Council [2022] EAT 166, the EAT underscored the need for a reason connected with the employee's disability to be the cause of the substantial disadvantage experienced. In Mr Hilaire's case, he refused to attend an interview forming part of a redundancy process (the PCP) not because of a reason connected with his disability but because of his belief that the redundancy process was a means of disguising the real reason for dismissal. As a result, the disability did not cause the disadvantage, and the duty to make reasonable adjustments did not arise.

When undertaking a comparative exercise, it is only necessary to ask whether the PCP puts the disabled person at a substantial disadvantage when compared with a non-disabled person. For example, a PCP of requiring a certain level of attendance at work, will often place a disabled employee at a disadvantage when compared to non-disabled colleagues.

Reasonableness of adjustments

It is important to remember that an employer will not be obliged to make an adjustment in all cases in which a disabled employee is placed at a substantial disadvantage by a PCP. The obligation only arises if it would be reasonable to make an adjustment.

The EHRC Code lists the factors which might be taken into account when deciding the reasonableness of an adjustment for an employer:

• The extent to which the adjustment would have ameliorated the disadvantage.
• The extent to which the adjustment was practicable.
• The financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer's activities.
• The financial and other resources available to the employer.
• The availability of external financial or other assistance.
• The nature of the employer's activities and the size of the undertaking.

The first of the factors listed in the EHRC Code is the most important, and the one without which an adjustment will not ordinarily be regarded as reasonable. If an adjustment would not work (in the sense that it would not alleviate the disadvantage in question), it ought not to matter how big or small the undertaking, or how inexpensive the proposed step, as the adjustment would be a futile gesture.

However, when assessing whether an adjustment would work, 100% certainty is not required. If there is a chance or prospect that the adjustment will work it would usually be reasonably to make it, subject to the other relevant factors.  

It may help for an employer to obtain an expert opinion on the likely efficacy of any proposed step. This might involve seeking medical evidence on the extent of an employee's disability and its effect on their ability to carry out the job they are employed to do. In cases involving medical conditions that are less familiar, or whose effects are less predictable, medical evidence may be essential.

The cost of the possible adjustments, together with the financial and other resources available to the employer, will be relevant to whether the adjustments will be reasonable.

However, the EHRC Code warns:

"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" (paragraph 6.25).

Further, an adjustment need not be "cost effective" to be reasonable. Large (and particularly public sector) employers might well, given their resources, be expected to make adjustments that are not cost effective. For instance, in Karim v The Commissioner of Police of the Metropolis ET/2207504/2021, an employment tribunal held that the Metropolitan Police Service failed to make reasonable adjustments by not funding the full cost of enhanced in-ear hearing aids, which were just under £6,000, as well as failing to cover the cost of insuring them. The hearing aids had been recommended by an audiologist and there was no evidence that the police service could not afford to pay for them.

Nevertheless, even an employer with substantial resources will not necessarily be required to make very expensive adjustments. Money is by no means limitless even in large organisations, and balancing a disabled person's need for adjustments against other spending priorities will always involve difficult judgements. In Cordell v Foreign & Commonwealth Office UKEAT/0016/11, an employment tribunal held that, despite the FCO's substantial overall budget, the costs of providing English lipspeaker support for a profoundly deaf employee in an overseas diplomatic post in Astana, Kazakhstan (about £250,000 a year) were unreasonable. The tribunal compared this with other costs, such as the disabled employee's salary (about £50,000), the FCO's total disability budget (£562,934), the highest cost paid for reasonable adjustments in respect of any other employee (£49,000), the total staffing costs for Astana (£295,000 for diplomatic staff and £190,000 for local staff), and the allowance payable to diplomatic staff with children (up to £25,000 school fees plus three return air fares per child). The EAT upheld this decision on appeal.

The EAT in Cordell gave guidance on how tribunals should approach the issue of cost in reasonable adjustments cases. It said that the factors to consider might include:

• The size of any budget dedicated to reasonable adjustments.
• What the employer has chosen to spend in what might be thought to be comparable situations.
• What other employers are prepared to spend.

The effect of the proposed adjustment on the organisation or workforce is also relevant to whether an adjustment is reasonable. Nonetheless the workforce would be expected to adopt a cooperative and helpful approach in applying the adjustment. A failure to do so by the workforce would be very unlikely to form a defence to a claim.

Making an adjustment

There is no onus on a disabled person to suggest adjustments. The duty to consider making reasonable adjustments falls on the employer.

The EHRC Code points out that it is good practice for the employer to ask the disabled employee about possible adjustments (paragraph 6.24). It is certainly advisable for an employer to agree any proposed adjustments with the employee before they are made.

The employer must bear the cost of making the reasonable adjustment.

CONTACT US

If you need guidance on any of the above matters, we are here to help.  Please do not hesitate to contact Martin Cornforth on 01636 558343, or email: martin.cornforth@chattertons.com.