Failure to make reasonable adjustments

A failure to make reasonable adjustments refers to a breach of the employer’s duty to ensure that workers and applicants are not substantially disadvantaged in carrying out or applying for a job because of a disability when compared with people who do not have a disability.

This is a statutory duty that most employers are accustomed to dealing with, although determining exactly what constitutes a ‘disability’ and what is classed as ‘reasonable’ can, in practice, often create problems.

We examine this duty in more detail below, providing practical advice to help employers avoid claims for unlawful discrimination arising from a failure to make reasonable adjustments.

What is the employer’s duty to make reasonable adjustments?

Under the Equality Act 2010, employers are under a duty to make reasonable adjustments in the workplace to ensure that disabled workers and job applicants are not substantially disadvantaged in carrying out their job role or applying for a vacancy.

A ‘reasonable adjustment’ is a change deliberately designed to remove or reduce any barriers that an individual may be faced with in performing, or applying for, a job because of:

A physical feature of the workplace premises: this refers to the layout of the premises or the lack of a physical feature, such as a lift or toilets with wheelchair access;
Any failure to provide an auxiliary aid: this refers to the provision of extra equipment or support such as computer software for a blind person or a sign language interpreter for someone with hearing problems;
A provision, criterion or practice applied in the workplace: this typically refers to working arrangements, such as the hours an employee is required to work, the duties they are required to undertake or the targets they are asked to meet.

Who can request reasonable adjustments?

The legal duty placed on an employer to make reasonable adjustments is owed to both workers and job applicants who are suffering with a disability within the meaning of the Act. An individual will be treated as having a disability if they can show they have:

“a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.

To gain the protection afforded by the Act, an individual must prove they meet all aspects of the legal definition of a disability. This means there must be evidence of:

A physical or mental impairment
That has an adverse effect on the person’s ability to carry out normal day-to-day activities
The effect of that impairment is substantial, and
The substantial effect is long-term.

The duty to make reasonable workplace adjustments will only arise where the worker or applicant is likely to be at a substantial disadvantage in carrying out or applying for a job when compared with others. This means the disabled individual must be affected in a way which is more than minor or trivial.

The cause of any disability or the diagnosis given is not necessarily important when it comes to the provision of reasonable adjustments, where it is the effect of the ability on the worker or applicant to carry out everyday tasks that matters. It is therefore not possible to list a range of conditions that will always fall within the statutory definition of ‘disability’, as each case will depend on the effects and severity of the impairment.

When does the duty to make reasonable adjustments apply?

By law, an employer must make reasonable adjustments in the workplace when:

They know, or could reasonably be expected to know, a worker or job applicant has a disability, and that the individual is substantially disadvantaged because of it
A worker or job applicant with a disability asks for adjustments to be made
A worker with a disability is having difficulty with any part of their job
A worker has complained about the impact of a particular rule, feature or lack of equipment or support to their line manager or senior management
A worker’s absence or sickness record, or any delay in returning to work, is because of or linked to their disability.

Once the duty to make reasonable adjustments has arisen, the employer must take steps to establish the nature of the individual’s impairment and the type of adjustments required to support them in performing their duties or in applying for a job. This should include, where relevant, attending interview or participating in any other stages of the recruitment process.

Examples of workplace reasonable adjustments

There are various ways in which an employer can remove or reduce any barriers that an individual may be facing in performing or applying for a job because of their disability. The adjustment could be a physical adaptation to the workplace; the provision of specialised equipment or support for the worker or applicant; or a change to the way things are done.

Common examples of reasonable adjustments for employers to consider include:

Arranging for an interview to take place on the ground floor for a wheelchair user
Providing an amplified phone for someone with a hearing impairment
Allowing a phased return to work for an employee with PTSD following long-term sick leave
Amending a worker’s duties to avoid strenuous manual tasks for someone no longer able to undertake heavy manual labour
Allowing different shift patterns for someone suffering with side effects from medication
Allowing regular breaks for someone with diabetes so they get the sufficient food or drink during the day
Giving additional time for someone with dyslexia to complete any written interview tests
Providing a support worker for someone with autism
Providing a mentor for someone with anxiety or depression
Adapting the workplace for wheelchair access, such as the installation of a ramp.

This is not an exhaustive list, where there are a whole host of ways that the workplace or working conditions can be adjusted to help alleviate the effects of any disadvantage that a worker or job applicant may be experiencing at work or in applying for a job.

Determining what is ‘reasonable’

There is no statutory definition of what is ‘reasonable’, where this will depend on the facts of each case, although the following factors will usually be considered relevant:

The cost involved of making any adjustment
The nature and size of the employers’ undertaking
The extent of the financial and other resources available to the employer
The availability of external financial or other assistance
The practicalities involved in making the adjustment
The potential effectiveness of any adjustments in removing or reducing the disadvantage suffered by the disabled worker or applicant when compared to a non-disabled person.

The onus is on the employer to show that the adjustments made are reasonable, where a small business may be unable to afford the same level of adjustments as a large company. However, if a disabled worker or applicant claims that you have not gone far enough in making reasonable adjustments, you will still need to prove that your actions are justified.

The law does not require you to make adjustments that are unreasonable, for example, where the cost disproportionately outweighs the likely benefit, or where it is likely to cause significant disruption to your business, but you should still try to find other ways to support the disabled worker or applicant in removing or reducing any disadvantage.

Consequences of any failure to make reasonable adjustments

An employer’s failure to make reasonable adjustments for a worker or applicant suffering with a disability will constitute discrimination under the 2010 Act. In most cases, the individual is likely to make an informal complaint or raise a formal grievance about the employer.

However, in some cases, an employer could also find themselves facing a claim for unlawful discrimination before an employment tribunal. Where a tribunal makes a finding of a failure to make reasonable adjustments, the employer can be liable for an unlimited sum of damages. This is because there is no cap on how much a tribunal can award where an employee has behaved in a discriminatory way towards a disabled worker or job applicant.

It is therefore imperative that employers fully understand when the duty to make reasonable adjustments can arise and to put in place appropriate measures, where necessary, to ensure that any disadvantage suffered by a disabled worker or applicant is alleviated. Any failure to do otherwise, is likely to have very costly consequences for an employer.

Avoiding complaints for unlawful discrimination

To minimise any complaint of unlawful discrimination, you should always look for ways to assist those suffering with a disability, beginning with your recruitment processes and running throughout the course of a worker’s employment with you.

In particular, you should always be pro-active in supporting any worker suffering from long-term physical or mental health problems, making any reasonable adjustments within the workplace where at all possible. Fortunately, many adjustments can be simple and affordable.

As a sensible starting point you should review and assess any fitness for work notes where a worker has been off sick through either illness or injury. The fit note will often set out recommendations from the individual’s GP as to what adjustments can be made to assist them in getting back to work, such as a phased return, amended duties, altered hours or workplace adaptations. You could also ask the worker to agree to an occupational health assessment. This can be done even where they have not been absent from work but are experiencing problems in performing their job role due to their disability.

Importantly, employers should always endeavour to openly communicate with any worker suffering from a long-term impairment. In this way you can ascertain the individual’s own view on what they need to support them and how this can be best achieved, agreeing on possible workplace adjustments together. It is also often a good idea to put this in writing.

Every individual experiences disability differently. It is therefore crucial not to make generalisations, where some people will experience minimal effect on their day-to-day activities and will manage at work fairly easily, while others will suffer severe effects. You must listen to what a worker says about the daily effects of their disability, and let them identify the difficulties they are facing and listen to any suggestions.

Where reasonable adjustments are made you should again keep a clear record of these, as well as regularly reviewing any adjustments to ensure that these remain effective moving forward. If, on the other hand, there are no reasonable adjustments that can be made, you must explain your reasons for this. Give the potential risk here of any claim for unlawful discrimination, it is also always best to seek expert legal advice to minimise your exposure to a tribunal claim.