Employment: Reasonable adjustment rules

The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website).

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

Examples
Assessment and consultation
Reasonableness
- Applying for job - telling employer in advance?
Employer's knowledge - defence
Onus to comply is on employer
Differences before October 2004
Changes

The basic rule

Where any provision, criterion or practice applied by or on behalf of an employer places a disabled person at a substantial disadvantage in comparison with non-disabled people, the employer is obliged to take such steps as it is reasonable, in the circumstances, for him to have to take in order to prevent the provision, criterion or practice having that effect (new s. 4A). Provision, criterion or practice includes any "arrangements" (new s.18D(2)). A 'substantial' disadvantage is one that is not minor or trivial (para 5.11 of Code).

As against whom must the disabled person be placed at a disadvantage? In Smith v Churchills Stairlifts (2005) the Court of Appeal said this was not the population of non-disabled people generally, but was a more restricted group which would depend on the context, such as other applicants for the job.

The employer may sometimes have a "lack of knowledge" defence. Also in the case of a provision, criterion or practice for determining to whom employment should be offered, the relevant disabled person must be, or have notified the employer that he may be, an applicant for that employment (new s. 4A(2)(a)).

New section 18B (old Section 6 #) gives examples of adjustments, and of factors to be taken into account in deciding what is reasonable.

Examples

See my examples of reasonable adjustments for people who stammer.

Other sources on reasonable adjustments for people who stammer are the BSA booklets for people who stammer and employers, and the Employer's Forum on Disability's Briefing Paper: Employment adjustments for people who stammer.

Y v Calderdale Council (2003) and Y v Bradford Council (2006) are cases where a tribunal held that an employer had failed to make sufficient reasonable adjustments to the recruitment process for a person who stammers.

Assessment and consultation

Those are just possible examples of adjustments. In any particular case, the employer should assess what reasonable adjustments are appropriate in the circumstances. This should include consulting with the person who stammers.

There have been conflicting Employment Appeal Tribunal decisions as to whether the reasonable adjustment duty includes an obligation to carry out an assessment of whether and what reasonable adjustments should be made, which would include consulting the employee. Most likely the reasonable adjustment duty does not actually include that obligation. In other words, the employer probably has a defence if there are no reasonable adjustments which he could have made, even if he did not consider them, or if he fortuitously makes any required reasonable adjustments without proper assessement. However:

"...it will always be good practice for the employer to consult and it will potentially jeopardise the employer's legal position if he does not do so - because the employer cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint that he has not made reasonable adjustments..." (Tarbuck v Sainsbury's, para 72).

Without a proper assessment, which should include consultation, it may be impossible for an employer to know what adjustments might be reasonable, possible or effective. This will put an employer at serious risk of failure to comply with the duty.

One advantage of consulting with the employee is that it helps avoid assumptions about what the person can or cannot do. For example, a particular employee who stammers may be fine answering the phone and may not want to be taken off it. It is a good idea, as part of an assessment, to talk things over with the employee and see what issues if any there might be in his particular case (both from the employer's and the employee's point of view), and then look at the particular work circumstances to see what can be done.

Reasonableness

Don't forget that the employer may be willing to take a step even if not legally obliged. However, whether the employer is legally obliged to take the step depends on whether it is reasonable in all the circumstances for him to have to take it.

Some relevant issues in deciding how far a step is reasonable:

How far would the step would prevent the relevant disadvantage, eg how far would it enable the person who stammers to communicate effectively?
How practicable is it for the employer?
How far would it disrupt the employer's activities?
What would it cost?
What is the extent of the employer's resources?
Are there any grants etc available, such as through Access to Work? An Access to Work grant has been given towards the cost of an electronic device to help the fluency of a person who stammers, through Jobcentre Plus. A grant may be available even if you are already employed.

Other factors may include, for example, how valuable the employee is to the employer. (New Section 18B(1)/old Section 6(4) #, and paras 5.24-5.42 of Code).

The test for the reasonable adjustment duty is an objective one. Unlike the justification defence, it is for the tribunal to reach its own decision on what steps it would be reasonable for the employer to have to take (Smith v Churchills Stairlifts, 2005)

Applying for a job - telling an employer in advance of need for adjustments?

Whilst there is a "lack of knowledge" defence, the case of Y v Calderdale Council (though not a binding precedent) illustrates that an employer may still have a duty to make adjustments on recruitment even where he has not been told in advance of the extent of a person's stammer - or probably that the person stammers at all. The tribunal in that case seemed willing to countenance fairly significant adjustments even though the extent of the problem was not established until a late stage.

Even so, an employer may have greater obligations to make adjustments if he has sufficient notice to consider them and to make appropriate preparations in advance of the interview etc. Advance notice to the employer may make it more likely to be reasonable for the employer to have to make particular adjustments. More importantly, it may increase the likelihood of adequate adjustments actually being made.

At least in theory, the employer should probably be proactive (see Onus to comply is on employer below). However, if the employer does not raise the issue, a person who stammers who thinks he may want adjustments could perhaps raise it when he has been sent the invitation to interview.

Employers' knowledge - defence

The employer's obligation to make a reasonable adjustment only applies if he knows or could reasonably be expected to know:

that the relevant person
- has a disability; and
- is likely to be placed at a substantial disadvantage by the relevant provision, criterion or practice: and
in the case of an applicant or potential applicant, that that person is or may be an applicant for the employment.
(new Section 4A(3), old Section 6(6))

If an employee or agent - eg the employer's medical officer- has the relevant knowledge, the knowledge can be imputed to the employer.

Ridout v TC Group plc is an example of a case where an employer was held not to be expected to know the effects of a rare disorder without being told in terms. Contrast Y v Calderdale Council as regards a severe stammer.

So the employer needs to have actual or constructive knowledge of the stammer and its relevant impact. The clearest way to trigger the employer's obligation is to say if you want a particular adjustment and why. However your failure to do so does not necessarily negate the employer's obligation - it is a matter of whether the defence applies in the particular case.

Onus to comply is on employer

The duty to make reasonable adjustments is on the employer. Provided the "lack of knowledge" defence above does not apply, the duty is not subject to the employee suggesting a reasonable adjustment, though of course it can be helpful for the employee to do so. In Cosgrove v Caesar & Howie (EAT, [2001] IRLR 653), the fact that the disabled person and her general practitioner had not suggested any useful adjustments was no defence where the employer had himself failed to consider any reasonable adjustments. Also in Y v Calderdale Council the tribunal accepted that it was not simply down to the applicant to suggest his own adjustments.

However, the employer may fall foul of the DDA if he fails to give consideration to suggestions an employee does make as to what might alleviate his work problems (Fu v London Borough of Camden EAT [2001] IRLR 186)

Differences before October 2004

The reasonable adjustment duty applying before 1st October 2004 was more limited than the current duty in some respects:

most importantly, the duty applied only to employers employing at least 15 people.
the duty applied to any "arrangements" rather than to any "provision, criterion or practice" (old section 6). However "arrangements" is a broad term so despite this limitation the duty was very wide even before October 2004.
the "arrangements" covered were arrangements for determining to whom employment should be offered, and any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded. (It seems that arrangements relating to dismissals could be covered provided the case is pleaded properly - see Clark v Novacold.) Again the wording is broad so, despite this limitation, the duty was wide in scope even before October 2004.
there was a defence where the employer shows his failure is 'justified' (old section 5(4) #;). However, this defence would rarely apply because the Court Appeal severely limited it in Collins v Royal National Theatre (2004), as regards failure to make reasonable adjustments. The justification rules must be read subject to that decision.

Further changes?

The Disability Rights Commission has recommended that employers should be subject to a duty to anticipate the requirements of potential disabled employees and applicants, and to take reasonable action to remove barriers in advance of individual complaint. This would parallel the provisions which relate to disabled students and customers in Parts III and IV DDA. For more, see Proposed employment changes.

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