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Employment: Reasonable adjustment rules - before October 2010

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" (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.

What is reasonable is decided objectively: 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). This contrasts with the justification test, where the employer's decision may have to be accepted even if the tribunal would have come to a different conclusion.

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

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).

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

As discussed below there is a "lack of knowledge" defence - broadly the employer has a defence to the reasonable adjustment duty if he did not know, and could not reasonably be expected to know, of the disability and its placing the person at a substantial disadvantage.

However, 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 it was only at the interview itself that the employer became aware of the extent of the problem in the actual interview.

A case which went the other way on the facts is Shirlow v Translink. The applicant had not told the employer in advance of the stammer, and the tribunal held that the 'lack of knowledge' defence did apply. There was no duty to make adjustments.

Even though the reasonable adjustment will often apply despite lack of advance notice, an employer will sometimes 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. For example, in Shirlow v Translink the tribunal held that (even apart from the 'lack of knowledge' defence) it would not have been reasonable to arrange a second interviewer for the claimant given there was no advance notice.

Very importantly, advance notice to the employer 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:

According to the Code of Practice, if an employee or agent - eg a line manager, or the employer's medical officer - knows in that capacity of the disability, the employer will not usually be able to claim that it did not know and had no obligation to make a reasonable adjustment (para 5.15-5.16). The Code says: "Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means - suitably confidential - for bringing the information together, to make it easier for the employer to fulfil its duties under the Act." Despite this one tribunal, in Shirlow v Translink, found the 'lack of knowledge' defence applied even though the claimant's line manager knew of the stammer - but this was not an appeal case and other Tribunals may well reach conclusions more consistent with the Code of Practice.

The Code of Practice (page 62ff) also says that the employer must do all it can reasonably be expected to do to find out whether the employee has a disability and is likely to be placed at a substantial disadvantage.

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.

The Employment Appeal Tribunal (EAT) in DWP v Alam disagreed with a previous EAT decision on how the test should be interpreted. The previous decision had apparently made it harder for the employer to rely on the 'lack of knowledge' defence, but the EAT in the later case took a different view.

So the employer needs to have actual or constructive knowledge of the stammer and (or 'or'?) 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 (see for example Y v Calderdale Council) - 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)

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 on when time starts to run in the case of omissions, which is what a failure to make reasonable adjustments will generally be. Further, in Matuszowicz v Kingston Upon Hull City Council (2009) the Court of Appeal decided that those rules apply in part even where the failure to make a reasonable adjustment is not deliberate, so that there is a cut-off point for when a claim can be made. One judge 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

How does the reasonable adjustment duty apply on dismissal? This is particularly important after the House of Lords decision in Malcolm, which means that very often a dismissal will not be 'disability-related discrimination' and the claimant will be looking at whether he can bring a reasonable adjustment claim instead.

The Court of Appeal in Clark v Novacold (1999) held that dismissal was not a breach of the duty to make adjustments. It is very likely though that the position is now different, that a dismissal can itself be a breach of the duty to make reasonable adjustments. In Aylott v Stockton on Tees Borough Council (July 2010) the Court of Appeal was very sypathetic to an argument that the wording of the UK statute has now changed, and also the Framework Employment Directive must be complied with. However, the Court of Appeal did not have to reach a firm conclusion on the point in that case.

Previous position

The Court of Appeal said in Clark v Novacold (1999) that a dismissal was not an 'arrangement' falling to be adjusted under the reasonable adjustment duty (until 2004 the duty only applied to 'arrangements'). However, pre-dismissal arrangements were subject to the reasonable adjustment duty. For example, redundancy criteria are subject to the duty as in Morse v Wiltshire County Council, as well as capability procedures and sickness or absence policies. The duty would also apply to reasonable adjustments to working arrangments to enable the employee to continue doing the job, or indeed to looking at whether there might be a transfer to a new job.

In 2004 the reasonable adjustment duty was broadened (see next heading below). There were conflicting decisions as to whether this meant a dismissal could itself be a failure to make reasonable adjustments. The Employment Appeal Tribunal (EAT) said yes it did in Fareham College v Walters (2009). The Court of Appeal judgment in Aylott has strengthened this view.

Differences before October 2004

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

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Last updated 7th August, 2010