The duty to make reasonable adjustments under s.20-21 EqA is arguably the most important type of claim for disability discrimination.
Introducing the duty
The duty applies where, broadly, a provision, criterion or practice (PCP) of A’s puts a disabled person, or disabled people, at a substantial disadvantage in comparison with persons who are not disabled. “A” may be an employer, service provider, college etc. “A” is required to take such steps as it is reasonable to have to take to avoid the disadvantage. Substantial means only “more than minor or trivial” (s.212(1) EqA).
As well as applying to PCPs, the reasonable adjustment duty also applies to physical features putting a disabled person at a more than minor or trivial disadvantage – such as a flight of steps inaccessible for wheelchair users – and auxiliary aids or services if without them a disabled person would be put at a more than minor or trivial disadvantage – eg a BSL interpreter for Deaf people.
An employer allows a person who stammers longer for a job interview. It also gives no less weight to information in the written application which the person fails to mention in the interview, recognising that the person may say less because of the stammer.
Note: What adjustments are appropriate will depend on the particular case: see Examples of reasonable adjustments: Recruitment.
A bank’s practice is that certain issues should be resolved over the telephone. Some disabled customers, including some people who stammer, will find it difficult to sort out an issue over the phone. The reasonable adjustment duty may require the bank to allow disabled customers who find phone calls difficult to discuss the issue face-to-face or in writing, perhaps through a secure online chat facility.
See a similar example (consumeractiongroup.co.uk), 2010.
- Legislation: s.20 and 21 EqA (legislation.gov.uk) – plus many Schedules.
- Codes of Practice: Employment Code, Chapter 6; Services Code, Chapter 7.
Individual versus anticipatory duty
There are two basic types of reasonable adjustment duty:
- the reasonable adjustment duty on employers and exam providers (other than universities for their students), which is based on disadvantage to an individual disabled person; and
- the “anticipatory” duty on service providers, public authorties, universities, schools and some others, which is based on disadvantage to people with the particular kind of disability. This is a duty to disabled people generally, even before an individual disabled person presents themself, and is explained further on Reasonable adjustments by service providers.
Legally the differences are achieved through Schedules to the Equality Act, which modify the basic reasonable adjustment duty in s.20 for the different contexts in which it applies.
Individual versus anticipatory duty: Which type applies?
In what situations does the “individual” type of reasonable adjustment apply – exemplified by the duty on employers – as opposed to the “anticipatory” duty on service providers etc?
- The individual type of reasonable adjustment duty, which focuses on disadvantage to the individual disabled person, applies to:
- employers,
- trade/professional qualification bodies, including as regards professional exams,
- further and higher education providers as regards conferring qualifications on non-students,
- exam boards awarding GCSEs, A-levels and certain other qualifications, and
- some employment services.
- The “anticipatory’ type” of reasonable adjustment duty applies to:
- service providers, ie those providing services to the public
- public bodies exercising public functions, even though not services to the public, such as the police when arresting someone – examples at Public authority functions>Where do the rules apply
- universities and other further and higher education providers as regards their own students,
- schools,
- some employment services,
- associations including private members clubs.
Employment
Here the reasonable adjustment duty is based on disadvantage to the individual (above). An employer has a ‘lack of knowledge’ defence if it could not reasonably have been expected to know of the disability or of the more than minor or trivial disadvantage.
More on reasonable adjustments by employers, including many examples for stammering: Reasonable adjustments: Employment.
Provision of services, public functions
As regards provision of services, and functions of public authorities, the duty to make reasonable adjustments is based on disadvantage to disabled poeple as a group, and is therefore “anticipatory”. This means that providers should not wait until a particular disabled person tries to use the service before considering adjustments.
The policy of the legislation is not to say that “just about accessible” is OK The idea is provide access as close as reasonably possible to that enjoyed by non-disabled people. The courts take that into account in deciding what is reasonable.
A service provider need not take steps which would fundamentally alter the nature of the service, or of its trade, business or profession.
More on reasonable adjustments by service providers and public authorities: Reasonable adjustments by service providers.
Education
Similarly in education (apart from some exam providers) the duty to make reasonable adjustments is “anticipatory”, so schools and universities etc should not wait until a particular disabled person tries to use the service before considering adjustments. The basic structure of the duty is the same as on Reasonable adjustments by service providers.
For education (ie claims under EqA Part 6, which includes schools, universities etc), if the disabled person or their parent has requested that the nature or existence of the disability be treated as confidential, there is a specific provision about taking into account how far an adjustment is consistent with the request (EqA Sch 13 para 8). See my sections about this on schools and universities.
For more see:
Relationship with indirect discrimination
The reasonable adjustment duty has close similarities with indirect discrimination in that both refer to a “provision, criterion or practice” (PCP) putting someone at a disadvantage. But at least in employment the reasonable adjustment duty is more straightforward, less technical.
A reasonable adjustment claim may also be easier because in indirect discrimination the employer etc has a defence if can objectively justify the PCP. In the case of reasonable adjustments by an employer, the focus is not on whether the PCP itself is justified, but whether it is reasonable to make an adaptation to reflect the different needs of a particular disabled person.
