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Employment: Reasonable adjustment rules

This page deals with the rules of the duty to make reasonable adjustments in the context of employment. There is a separate page of examples of reasonable adjustments for people who stammer. Also the EHRC website has guidance on the general rules: The employer's duty to make reasonable adjustments to remove barriers for disabled people (link to EHRC website).

The basic rules

The duty to make reasonable adjustments includers three different 'requirements':

  1. adjustments where the disabled person is put at a disadvantage by the way things are done (a 'provision, criterion or practice'). This is the head which is most relevant for stammering;
  2. adjustments to the built environment ('physical features'), eg providing access to a building; and
  3. providing auxialiary aids and services.

Provision, criterion or practice

This involves changing the way things are done, or more precisely taking steps to avoid the disabled person being put at a disadvantage by the way things are done. It is the most common head under which a person who stammers will claim a reasonable adjustment.

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 to have to take to avoid the disadvantage (EqA s.20 and Sch 8 para 2).

The phrase 'provision, criterion or practice' is not defined by the Act but 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...
Employment Code para 6.10

Physical features

This involves adaptations to the built environment.

There is an obligation, where a 'physical feature' puts a disabled person at a substantial disadvantage, to take such steps as it is reasonable to have to take to avoid the disadvantage. 'Avoiding' the feature includes removing it, altering it, or providing a reasonable means of avoiding it.

A 'physical feature' is defined widely. As well as steps, doorways etc, it includes for example fittings, furniture or equipment on premises, or a 'physical element or quality'. (s.20(4)(9)(10) EqA, and Employment Code para 6.1).

Physical features are more obviously relevant to people who use a wheelchair, or who have a visual impairment, for example. However they can be relevant to stammering, for example with regard to open plan offices. Also -

SCA Packing v Boyle
A claimant with voice problems complained about the effect of increased noise levels arising from removal of a partition.

Auxiliary aids and services

There is also an obligation to take such steps as it is reasonable to have to take to provide an auxiliary aid where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation in comparison with persons who are not disabled (EqA s.20 and Sch 8 para 2). This could probably include provision of an altered auditory feedback device for someone who stammers.

'Auxiliary aid' also includes an auxilliary service (s.20(11) EqA).

Jumping through the hoops

It can be tempting to take rather a 'broad brush' approach to the reasonable adjustment duty, and to think for example that employers are obliged to take reasonable steps in connection with a disability.

However Employment Appeal Tribunal decisions have pointed up that tribunals need to consider the statutory wording and check whether the situation falls within that. E.g. tribunals should identify the provision, criterion or practice applied by or on behalf of an employer, the identity of non-disabled comparators (where appropriate) and the nature and extent of the substantial disadvantage suffered by the claimant. See for example on sickness absence RBS v Ashton (link to bailii.org), 2010, referring to Environment Agency v Rowan. In Salford NHS Primary Care Trust v Smith (link to bailii.org), 2011, a career break was held not to be an adjustment. See also Trials below.

Substantial disadvantage

A 'substantial' disadvantage is just one that is 'more than minor or trivial' ((s.212(1) EqA).

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.

As mentioned under 'Reasonableness' below, a factor to be taken into account in whether an adjustment is reasonable is "whether taking a step would be effective in preventing the substantial disadvantage." There needs to be a prospect that the proposed adjustment will have the desired effect. However, the claimant does not need to show it will have the effect, nor even that there is a "good or real prospect" of this (Leeds Teaching Hospital NHS Trust v Foster (link to bailii.org), EAT, 2011).

Relevant matters

There are provisions saying basically that the reasonable adjustment duty applies to employment, including recruitment, and to various other work situations. The legislation achieves this by saying the disabled person must be put at a substantial disadvantage "in relation to a relevant matter".

For standard employment situations, the relevant matters are "Deciding to whom to offer employment." or "Employment by [the employer]" (EqA Sch 8 para 2(3) and para 5). These are wide, and will not normally be relevant as limitations.

For physical features (not normally relevant to stammering) only the second of these two relevant matters applies (EqA Sch 8 para 2(4))

Notification and knowledge

Where the relevant matter is deciding to whom to offer employment, the disabled person must be, or have notified the employer that he may be, an applicant for the employment (EqA Sch 8 para 5).

Also, for both applicants and existing employees, the employer may sometimes have a "lack of knowledge" defence (see below).

For the reasonable adjustment duty to apply the claimant must have a disability within the Equality Act. However, the Employment Code para 6.9 says: "In order to avoid discrimination, it would be sensible for employers not to attempt to make a fine judgment as to whether a particular individual falls within the statutory definition of disability, but to focus instead on meeting the needs of each worker and job applicant." (There is a similar message in para 10.43).

Examples

The Employment Code from para 6.32 gives examples of possible reasonable adjustments.

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 (link to BSA) and employers (link to BSA), and the Employer's Forum on Disability's Briefing Paper: Employment adjustments for people who stammer (link to edf.org.uk).

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.

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. It is advisable to agree any proposed adjustments with the individual before they are made (Employment Code para 6.32). See further next heading on assessing, consulting etc.

Assessment, consultation and trials

The employer does not have a specific legal obligation to assess and consult on reasonable adjustments. However, in practice failure to do so may well lead to a breach of the reasonable adjustment duty.

At one stage the Employment Appeal Tribunal (EAT) held in various cases that failure to assess what adjustments were required could itself be a breach of the duty. However, courts now follow the EAT decision in Tarbuck v Sainsbury's (link to bailii.org) (June 2006).

The consequence is that if an employer did not consider and consult on reasonable adjustments, and it turns out - by chance - that there were no adjustments (or no further adjustments) that the employer should have made, then the employer is not in breach of the duty. However:

There can be no doubt that any employer would be wise to consult with a disabled employee in order to be better informed and fully acquainted of all the factors which may be relevant to a determination of what adjustment should reasonably be made in the circumstances. If the employer fails to do that, then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance. He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so. The issue for the Tribunal will then be whether it was reasonable to take that step or not
Tarbuck v Sainsbury's (link to bailii.org), para 72.

Accordingly, without a proper assessment, which should include consultation, it is likely to be impossible for an employer to know what adjustments might be reasonable, possible or effective. This will put an employer at serious risk of failing 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, some (indeed many) people who stammer have problems with the telephone, but there are others who will be fine answering the phone and will not want modifications in this area. It is a good idea, as part of an assessment, to talk things over with the employee and see what issues, if any, there may 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.

Trials

Based on similar reasoning, an Employment Appeal Tribunal has said "Adjustments that do not have the effect of alleviating the disabled person's substantial disadvantage as we have set it out above are not reasonable adjustments within the meaning of the Act. Matters such as consultations and trials, exploratory investigations and the like do not qualify." (my emphasis) - see Salford NHS Primary Care Trust v Smith (link to bailii.org), 2011, citing Rowan v Environment Agency. In the Salford case itself, formulating proposals for rehabilitation to put to the claimant's GP was held not to be an adjustment.

For example, according to the Salford and Rowan cases, a trial period of home working may not qualify as an adjustment, though it could be a tool to enable the parties to determine whether home working is capable of being a reasonable adjustment that would prevent or mitigate difficulties of working in the office. It was suggested in the Rowan case that "a trial period is akin to a consultation, or the obtaining of medical and other specialist reports; these do not themselves mitigate or prevent or shield the employee from anything." This seems rather debatable, and note Leeds Teaching Hospital v Foster under Substantial disadvantage above where putting someone on a redeployment register to see if suitable alternative employment was available (in other words, less than actual redeployment) was held to be a reasonable adjustment, and only a prospect of a positive outcome was required.

In any event, the position is presumably different in a recruitment/promotion scenario, where different kinds of assessments or trials may be an adjustment.

Reasonableness

An 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 to have to take it, in all the circumstances of the individual case (Employment Code para 6.23).

What is reasonable is decided objectively: it is for the tribunal to reach its own decision on what steps it is reasonable to have to take (Smith v Churchills Stairlifts, 2005). For example, it is not a matter of the tribunal just deciding whether the employer's view of the matter was a reasonable one.

Some relevant issues in deciding how far a step is reasonable (Employment Code para 6.28):

Employment Code para 6.25 reads:

"Effective and practicable adjustments for disabled workers often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. 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."

There is EHRC guidance: What is meant by reasonable (link to EHRC website).

In practice the Objective justification defence will often also be relevant, as something that must be satisfied by an employer as well as 'reasonableness'. This is because, parallel to a claim under the reasonable adjustment duty, there will often be an alternative claim which is subject to the objective justification defence. On the other hand, this should not be too onerous for an employer as the two tests should often reach a similar result.

In the case of a job applicant, an employer may have greater obligations to make adjustments if it has sufficient notice to consider them and to make appropriate preparations in advance of the interview etc. See Recruitment: Should I tell the employer I stammer?

Cost of reasonable adjustments

Factors to be taken into account in deciding whether it is reasonable for an employer to have to make an adjustment include:

Adjustments for stammering will often cost nothing.

The availability to the employer of financial or other assistance to help make an adjustment will include Access to Work. An Access to Work grant has been given towards the cost of an altered auditory feedback device to help the fluency of a person who stammers, through Jobcentre Plus. A grant may be available even if you are already employed.

An example of a case where the cost of an adjustment was very significant and it was held the employer did not have to make it:

Cordell v Foreign and Commonweath Office, EAT, October 2011
The EAT upheld a decision that it would not reasonable for the employer to have to pay upwards of £249,500 per annum for lipspeakers to enable the deaf claimant to take up a diplomatic posting. The EAT said there is no objective measure for balancing the disadvantage to the employee if adjustments are not made and the cost of making them - tribunals must make a judgment, ultimately, on the basis of what they consider right and just in their capacity as an "industrial jury". The EAT went on to discuss some of the factors that can be helpful in making this judgment. There is an Equality and Human Rights Commission response to the decision.

Where there is a reasonable adjustment claim (subject to the test of reasonableness) there will often also be a claim which is subject to the objective justification defence. Accordingly see also Objective justification defence: Issues of cost.

Employer cannot pass cost to employee

S.20(7) EqA makes clear that the person required to make a reasonable adjustment is not entitled to require the disabled person to pay to any of the costs of complying with the duty. (There is a limited exception if the law expressly says otherwise.) HL Hansard 13/1/10 (link to UK Parliament website) at col 565.

The rule is modified for partnerships since partners share costs of the firm (EqA Sch 8 para 7 and para 8, Employment Code para 11.23).

This does not necessarily mean the employer must bear the cost - as outlined above an Access to Work grant may be available.

Employers' knowledge - defence

An employer's obligation to make a reasonable adjustment does not apply if it does not know and could not reasonably be expected to know that the person has a disability and is likely to be placed at a substantial disadvantage. See Knowledge of disability: 'Lack of knowledge' defences.

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 Equality Act 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, which related to the DDA).

This area is dealt with in the Employment Code para 6.24 which says:

"There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask). However, where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable."

Time limits

The general rules for time limits for bringing claims are outlined very briefly under Complaints and going to court.

However, there are special rules about when time starts to run in the case of omissions. This will normally include a failure to make reasonable adjustments. S.123(3)(4) EqA says that failure to do something is treated as occurring when the person in question decided on it. In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something

  1. when P does an act inconsistent with doing it; or
  2. if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

So unless there is either evidence of when a decision was taken not to make the adjustment or an act of the employer inconsistent with making the adjustment, the normal three month time limit within which to bring a claim will start from when the employer could reasonably have been expected to made the adjustment.

On similar rules under the DDA, see Matuszowicz v Kingston Upon Hull City Council (2009). Lord Justice Sedley in that case commented that:

"claimants and their advisers need to be prepared, once a potentially discriminatory omission has been brought to the employer's attention, to issue proceedings sooner rather than later unless an express agreement is obtained that no point will be taken on time for as long as it takes to address the alleged omission".

He also suggested that tribunals might be "sympathetic" in considering whether to extend the time limit where the rule creates difficulty for claimants.

Dismissals

For examples of reasonable adjustments related to stammering, including where dismissal may be a possibility, see Examples of reasonable adjustments.

Before 2004, the reasonable adjustment duty was held not to apply to a dismissal itself. However, this has very likely now changed - the reasonable adjustment duty may require that an employeer should not dismiss someone. On this technical legal point, see Reasonable adjustments: Dismissal.

Former employees

The reasonable adjustment duty may continue after the termination of the employment. See Employees and beyond: Former employees.

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Last updated 8th October, 2011