This page deals with the rules of the reasonable adjustment duty as regards employment. There are separate pages of examples of reasonable adjustments for people who stammer in recruitment and in the job.
- There are three types of reasonable adjustment claim. The most common is adjustments to PCPs, where the disabled person is put at a disadvantage by the way the employer does things, by a “provision, criterion or practice” (PCP).
- The other two types, which may also be relevant to stammering, relate to employers providing reasonable auxiliary aids or services (eg training, mentoring), or adjustments related to physical features (eg access to buildings).
- For the first type of adjustment, “provision, criterion or practice” (PCP) is understood widely. Eg it might include oral job interviews, or having to do phone calls in a job. A one-off decision by an employer can sometimes be a PCP.
- The PCP must put the disabled person at a substantial disadvantage compared with non-disabled people. “Substantial” means only “more than minor or trivial”.
- It is important that for all three types of adjustment, the employer has a defence if the employer did not have actual or constructive knowledge of the disability and the substantial disadvantage.
- However subject to that defence, it is not a defence that the employer did know what adjustments it would be reasonable to make. So the employer is well advised to assess what adjustments to make, consult the disabled person on them, and consider a trial where appropriate: below Assessment, consultation and trials.
- If there is unfavourable treatment arising from the disability (eg being rejected for a job), the Court of Appeal has stressed it is important to consider a claim under s.15 EqA, as well as the reasonable adjustment duty.
- Whether an adjustment is reasonable is for the employment tribunal to decide. The Code of Practice sets out factors to be taken into account.
- Often reasonable adjustments involve little or no cost or disruption. However cost is a factor in deciding whether an adjustment is reasonable. The employer cannot pass any cost to the disabled person.
- The onus to comply with the reasonable adjustment duty is on the employer, subject to the “lack of knowledge” defence above. The duty is not subject to the employee or job applicant suggesting a reasonable adjustment, though of course it can be helpful for the person to do so.
- See Burden of proof (below) on the claimant needing to identify an adjustment before the tribunal hearing, to shift the burden to the employer.
- There are special rules on when time limits start to run, as regards bringing a tribunal claim for reasonable adjustments.
- There are links to some examples below, particularly on stammering.
The duty to make reasonable adjustments includes three different ‘requirements’. Broadly:
- Where the way things are done – ie a “provision, criterion or practice” or PCP – puts the disabled person at a substantial disadvantage, there is a duty to take reasonable steps to avoid the disadvantage. This is the type of reasonable adjustment which is most relevant for stammering. It is also the type considered in most employment tribunal cases generally. Below Adjustments to PCPs.
- Where the built environment creates obstacles: if a “physical feature” put a disabled person at a substantial disadvantage, there is a duty to take reasonable steps to avoid the disadvantage, for example to provide access to a building. Below Physical features.
- Auxiliary aids and services: where the disabled person would, but for the provision of an auxiliary aid or service, be put at a substantial disadvantage, there is a duty to take reasonable steps to provide an auxiliary aid or service. Below Auxiliary aids and services.
“Substantial” means only “more than minor or trivial” (s.212(1) EqA). In each case the employer has a defence if it did not have actual or constructive knowledge (below) of the disability and substantial disadvantage.
This page focuses primarily on PCPs under 1. However adjustments relating to physical features (below) and providing auxiliary aids and services (below) are discussed at those links and can be relevant to stammering.
Adjustments to PCPs
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. The disabled person must be put at a disadvantage by a “provision, criterion or practice” (PCP) as the legislation puts it. This is the most common head under which a person who stammers will claim a reasonable adjustment. More generally, almost whenever employment tribunals consider reasonable adjustments it seems to relate to PCPs.
The rule is that where any “provision, criterion or practice” applied by or on behalf of an employer puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, 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 employer has a defence if it does not have actual or constructive knowledge (below) of the disability or substantial disadvantage.
What is a “provision, criterion or practice” (PCP)?
The tribunal will expect that at least the PCP and the “substantial disadvantage”, below should be identified.
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
A PCP may be just an expectation rather than a requirement:
United First Partners Research v Carreras (bailii.org), Court of Appeal, 2018
An expectation than an employee work late amounted to a PCP. There did not have to be a requirement that he do so.
Case summary: Long working hours: what constitutes discrimination? (vwv.co.uk).
Formulating the PCP can be tricky. It must be the PCP that “puts” the disabled person at a substantial disadvantage (below) in comparison with non-disabled people. So there must be a causative link between the PCP and the disadvantage. There is discussion of this in High on PCPs: What are they are how to use them (pdf, guildhallchambers.co.uk), 2016. I suggest that examples of PCPs relevant to stammering might include, broadly speaking:
- in recruitment, being required to answer oral questions in a job interview, or to give an oral presentation or take an oral assessment (or perhaps to do these within a particular time);
- being expected to make or answer phone calls as part of the job, or to do so in an open-plan office or whatever the normal arrangements are;
- a requirement to be able to perform one’s duties satisfactorily, and being at risk of dismissal if one cannot (similar to the Archibald case).
On difficulties of identifying the appropriate PCP, the EAT said in Martin v Swansea (bailii.org), 2021:
18. Unlike claims about adjustments to physical features or the provision of auxiliary aids a “first requirement” reasonable adjustments claim must start with the identification of the appropriate PCP: Environment Agency v Rowan  ICR 218 at paragraph 27. Litigants in person often struggle with discussions about PCPs at preliminary hearings for case management, seeing it as a jargon term that is difficult to decipher. Even lawyers can falter when identifying the correct PCP. However, it is clear that PCPs are not designed to be traps for the unwary and a practical and realistic approach should be adopted at the case management stage to identify a workable PCP which should not thereafter be over-fastidiously interpreted with the result that a properly arguable reasonable adjustments claim cannot be advanced, particularly when dealing with litigants in person …
19. Where a party is represented the employment tribunal can expect the PCP to be properly identified and so representatives should always consider how the PCP is pleaded with great care. A preliminary hearing for case management will often be a good opportunity to review whether the PCP as pleaded is workable and, if not, to consider whether an amendment might be required to rephrase the PCP. But whatever PCP is finalised it should be given a reasonably generous reading when determining the claim.
Most reasonable adjustment claims involve a PCP. However if there is difficulty identifying a PCP (or as an additional claim) it may be worth considering the separate heads of Auxiliary aids or services (below), eg mentoring, or possibly Physical features (below).
Can a one-off decision be a PCP?
A one-off act is not necessarily a provision, criterion or practice but it may be:
Ishola v Transport for London, Court of Appeal, 2020
The claimant argued there was a PCP of requiring him to return to work without concluding a proper and fair investigation into his grievances. His reasonable adjustment claim failed. The Court of Appeal held that all three words – provision, criterion and practice – carry the connotation of a state of affairs indicating how similar cases are generally treated, or how a similar case would be treated if it occurred again. A “practice” does not need to have been applied to anyone else, but should carry with it an indication that it will or would be done again in future if a hypothetical similar case arises.
PCP is the general practice etc before adjustments are made
This has been clearly held by the courts in relation to service providers, but seems to apply also for employers.
The Court of Appeal held in Finnigan v Northumbria Police, 2013 (duties of public authorities), that the PCP is the base position before adjustments are made to accommodate disabilities. “It includes all practices and procedures which apply to everyone, but excludes the adjustments.” This principle was also applied by Court of Appeal in Paulley v FirstGroup, 2017 (on service providers).
An example of an employment case reaching a similar conclusion (but not referring to the Finnigan and Paulley cases) is Griffiths v Secretary of State for Work and Pensions, 2015, where, at para 46 of its judgment, the Court of Appeal said that in a sickness management policy an employer’s discretion to make special allowance for disabled employees is not part of the PCP.
Saying that adjustments made for the individual are part of the PCP is also difficult to reconcile with Ishola (above). Furthermore it would have the odd result that any adjustments actually made by the employer were not legally required to be made.
The employment tribunal in Y v West Yorkshire Combined Authority>Reasonable adjustments: Should disregard reasonable adjustments when identifying the PCP, 2020, considered otherwise, taking the PCP to be the oral interview and presentation as extended to cater for the claimant’s stammer. However I suggest that is wrong in the light of the cases above.
The PCP applied by the employer must put the disabled person at a “substantial disadvantage” in comparison with non-disabled people. A “substantial” disadvantage is just one that is “more than minor or trivial” (s.212(1) EqA).
Example: In a job interview, the substantial disadvantage of a practice of having oral interviews (particularly of a given length) might be that the person who stammers will take longer to speak, and/or will limit what they say so that they do not say enough to be on a level playing field with other candidates.
The employer needs to have actual or constructive knowledge (below) of the substantial disadvantage as well as of the disability.
Comparison with non-disabled people
The PCP must put the disabled person at a substantial disadvantage in comparison with non-disabled people. No reasonable adjustment is required if non-disabled people would struggle with the PCP in a similar way to the claimant.
The comparison is not with the non-disabled population as a whole but with a more restricted group of people which will depend on the PCP. A comparator may be hypothetical rather than actual (Ishola, below).
Example: I suggest that as regards the PCP of having to do an oral job interview, the comparators would probably be the other job applicants invited for interview.
Smith v Churchills Stairlifts, Court of Appeal, 2005
The claimant passed the interview stage for a job as a salesman selling radiator cabinets. However the employer wanted salesmen to carry full-size radiator cabinets, and withdrew his place on a training course for the job because he was unable to do so, due to his disability. The claimant had suggested he work on a commission-only basis for a trial period, using an alternative sales method.
The Court of Appeal held the employer was in breach of the reasonable adjustment duty. It did not matter that the claimant was not at a substantial disadvantage compared with the population generally (the tribunal had found most non-disabled people would have difficulty carrying the cabinet any distance). In the light of the Archibald case, the comparison is with a more restricted group which is “readily identified by reference to the disadvantage caused by the relevant arrangements” (ie by the PCP).
Depending on the precise PCP, the claimant here was at a substantial disadvantage compared with the six successful course participants who were subject to the requirement to be able to carry the cabinet but not disadvantaged by it because they were not rejected as a result (a seventh was rejected during the course because he could not carry it), or compared with the people admitted to the course.
Ishola v Transport for London, Court of Appeal, 2020
This is the case summarised above where the court held that a “practice” does not need to have been applied to anyone else, but should carry with it an indication that it will or would be done again in future if a similar case arises.
The court accepted that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.
Would the proposed adjustment reduce the substantial disadvantage?
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.”
The claimant does not have to show that the step would reduce or prevent the substantial disadvantage. However there needs to be a “real prospect” (Lancaster the TBWA Manchester (bailii.org), EAT 2011) – or perhaps just a prospect (Leeds Teaching Hospital NHS Trust v Foster (bailii.org), EAT, 2011) – that the proposed adjustment will have the desired effect.
- the person has a disability and
- is likely to be placed at a substantial disadvantage.
This is very important in practice. See Knowledge of disability>Reasonable adjustment duty on employers, and Should I tell the employer I stammer?
Even if the employer did not know of the disability or substantial disadvantage, the ‘lack of knowledge’ defence does not apply if the employer etc could reasonably have been expected to know of the disability and disadvantage. This is often called ‘constructive knowledge’.
Much less important in practice, where the relevant matter (below) 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 consider a claim for discrimination arising from disability (s.15)
In Griffiths v Secretary of State for Work and Pensions the Court of Appeal stressed that the reasonable adjustment duty is only part of the protection for a disabled worker. It said that reasonable adjustments (s.20 EqA) are normally relevant when looking to the future. Whether or not it was “reasonable” to make adjustments and whether or not the reasonable adjustment duty applies at all, there is the separate question – at the time of any dismissal, being rejected for a job, or other unfavourable treatment arising from the disability – whether the unfavourable treatment is proportionate under s.15 EqA (discrimination arising from disability).
Claimant must have a disability
For the reasonable adjustment duty to apply, the claimant must have a disability within the Equality Act. Discrimination by association does not apply, so eg an employee caring for a disabled person cannot claim reasonable adjustments for that other person’s disability (though they may have other claims). See Discrimination by association>Does not apply to reasonable adjustments or discrimination arising from disability.
That is the legal position. However, the Employment Code at 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.”
Employment Code para 6.9. There is a similar message in para 10.43.
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. Eg tribunals should identify the provision, criterion or practice (PCP) 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 (bailii.org), 2010, referring to Environment Agency v Rowan. In Salford NHS Primary Care Trust v Smith (bailii.org), 2011, a career break was held not to be an adjustment. See also Trials below.
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 so will not normally be relevant as limitations.
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. Similar issues can arise on the justification defence under s.15 EqA: see Objective justification defence>Outcome rather than procedure?
Consultation – no duty to do it, but employers are well advised to
An employer (with actual or constructive knowledge of the disability and disadvantage) who does not consult on reasonable adjustments with the worker or job applicant concerned is at serious risk of being in breach of the reasonable adjustment duty.
The Employment Appeal Tribunal (EAT) held in Tarbuck v Sainsbury’s (bailii.org) 2006 that failure to assess or consider what adjustments are required is not itself be a breach of the duty. 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) the employer should have made, then the employer is not in breach of the duty. However, the court in Tarbuck said:
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 (bailii.org), para 72.
Accordingly, without a proper assessment with the employee or job applicant, which should include consultation, it is likely to be impossible for an employer to know what adjustments might be reasonable, possible or effective. That would put an employer at serious risk of failing to comply with the duty.
Example: An employer knows the employee has a stammer and that this is making phone calls difficult. The individual works in an open plan office and would find it helpful to have a more isolated part of the office or a separate room in which to make phone calls: see Open plan offices. However the employer does not know this as it has not discussed the matter with the employee. The employer’s ignorance is not an excuse for failing to make such adjustments, if they would be reasonable.
In that example the employer knows of the disability and substantial disadvantage. However ignorance is an excuse if the employer does not have actual or constructive knowledge (above) of those two things (the ‘lack of knowledge’ defence). But the employer is treated as having constructive knowledge of what it would have discovered had it done all it could reasonably be expected to do to find out. That may well include consulting the disabled person. So here too not consulting may prejudice the employer’s legal position.
One advantage of consulting with the employee or job applicant 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, like in the example above. However there are others who will be fine answering the phone and will not want modifications in this area. Also if the person does have a problem with the phone, different people may well find different things helpful, and may want different things. It’s a good idea, as part of an assessment, to talk things over with the employee, see what issues (if any) there may be in his particular case, and talk over anything they would like done and any other possible steps to help.
Based on similar reasoning, an EAT 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 (bailii.org), 2011. In that case, formulating proposals for rehabilitation to put to the claimant’s GP was held not to be an adjustment.
However in Rowan v Environment Agency (bailii.org) the EAT pointed out an employer who has failed to investigate the possibility of a trial period for a particular adjustment may find it difficult to establish the adjustment was not reasonable:
A trial period is a procedure that an employer should sensibly adopt in an appropriate case but does not appear to be an adjustment as such. …[W]hat [the reasonable adjustment provisions] envisage is that steps will be taken which will have some practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. It is not concerned with the process of determining what steps should be taken; It is prudent for employers to adopt a trial period in an appropriate case to see whether home-working for example is a reasonable adjustment. An employer who has failed to investigate the possibility of home-working by a trial period may find it difficult to establish that home-working was not a reasonable adjustment. We consider that a trial period is akin to a consultation, or the obtaining of medical and other specialist reports; these do not of themselves mitigate or prevent or shield the employee from anything. They serve to better inform the employer as to what steps, if any, will have that effect, but of themselves they achieve nothing.
Rowan v Environment Agency (bailii.org), para 61.
Rowan was a case in which the ‘substantial disadvantage’ was not clearly identified, so it was unclear a reasonable adjustment of working at home might be advantageous. Unlike consultations, trial periods do of course have the potential to mitigate a substantial disadvantage. I would therefore suggest that trials can be reasonable adjustments. I am not aware of any appeal cases holding otherwise where it was an essential part of the court decision. A trial may not a reasonable adjustment in the sense of forming part of determining what will work. However something may be a reasonable adjustment if there is only a prospect it will be effective – see Leeds Teaching Hospital v Foster under Would the proposed adjustment reduce the substantial disadvantage? above. It may be therefore be reasonable to make the adjustment, and if it is found to be ineffective it would presumably be reviewed, which is essentially a trial.
In any event, the position is presumably different in a recruitment/promotion scenario, where different kinds of assessments or trials may be an adjustment.
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). The tribunal is not limited to 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):
- whether taking a step would be effective in preventing the substantial disadvantage, eg how far would the step help the person who stammers to communicate effectively. There needs to be at least a prospect of the step being effective – see above Would the proposed adjustment reduce the substantial disadvantage?;
- the practicability of the step;
- the financial and other costs of making the adjustment, and the availability to the employer of financial or other assistance. See below Cost of reasonable adjustments;
- the availability to the employer of financial or other assistance to help make an adjustment, such as through 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 (Apps & devices>Paying for a device (on stamma.org)). A grant may be available even if you are already employed;
- the extent of the employer’s financial or other resources;
- the extent of any disruption caused;
- the type and size of the employer
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 (EHRC website).
In practice the same case may involve a claim for discrimination arising from disability (s.15 EqA) so that as well as the reasonableness test the employer must also show objective justification. 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 Knowledge of disability>Reasonableness of adjustments: relevance of advance knowledge.
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:
- the financial and other costs of making the adjustment, and
- the availability to the employer of financial or other assistance.
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, Employment Appeal Tribunal (EAT), 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 cost of making the adjustments against the disadvantage to the employee if adjustments are not made – 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.
Where there is a reasonable adjustment claim (subject to the test of reasonableness) there may 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 (parliament.uk) at col 565.
This does not necessarily mean the employer must bear the cost. As outlined above an Access to Work grant may be available.
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 or job applicant suggesting a reasonable adjustment. (However it can of course be helpful for the individual to ask for any adjustments they want: see eg Recruitment: Should I tell the employer I stammer?)
Project Management Institute v Latif, EAT, 2007
A blind woman taking a professional exam succeeded in her reasonable adjustment claim even though she had not suggested the particular reasonable adjustment at the time. The exam board accepted, and the EAT said it agreed, that there was no legal duty on her to identify the adjustment at the time, in the light of the Cosgrove case (below).
Home Office v Kuranchie, EAT, 2017
The claimant had dyspraxia and dyslexia. She was having to work long hours to get her work done. A flexible working arrangement was put in place. She later claimed the employer should have reduced her workload by way of reasonable adjustment. Her claim was upheld even though she had not suggested this at the time, citing the Latif case.
British Telecommunications v Meier, Northern Ireland Court of Appeal, 2019
A job applicant was at a disadvantage in a situational judgment test because he had Asperger’s syndrome. This test was the initial stage in the recruitment process. The employer refused to interview him when he failed it. The court held this was a failure to make reasonable adjustments. It did not matter that the claimant had not suggested at the time what reasonable adjustment he wanted.
Cosgrove v Caesar & Howie (bailii.org), EAT, 2001
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.
Not a precedent but an employment tribunal case on stammering:
Y v Calderdale Council, Employment Tribunal, 2003
The tribunal held there was a breach of the reasonable adjustment duty in relation to a job applicant who stammered. The tribunal accepted the force of his argument that it was the employer which understood the exact purpose and nature of the recruitment process, and that the applicant could not be expected to suggest all his own adjustments to cope with a process about which he was not fully informed.
The Employment Code says at para 6.24:
“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.”
However, the employer may fall foul of the Equality Act if it 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  IRLR 186, which related to the DDA).
Burden of proof
The claimant need not identify the particular adjustment at the time the adjustment should be made: above Onus to comply is on employer. However for the burden of proof to shift under s.136 EqA, by the time of the tribunal hearing there must be some indication as to what adjustments the claimant alleges should have been made. The employer should be able to understand the broad nature of the adjustment proposed and be given sufficient detail to enable it to engage with the question of whether it could reasonably be achieved or not. It is then for the employer etc to show the adjustment is not reasonable. This was established by Project Management Institute v Latif, 2007, where there was held to be a failure to make reasonable adjustments for a professional exam.
The EAT in Latif said it very much doubted whether the burden shifts at all in respect of establishing the provision, criterion or practice (PCP), or demonstrating the substantial disadvantage. It thought that for these the onus of proof rests on the claimant throughout. The High Court followed that approach in R (Imam) v LB Croydon (bailii.org), 2021, at para 94-95 (a case on the reasonable adjustment duty in relation to service providers/ public functions), saying the claimant must establish the application of the PCP and the existence of a substantial disadvantage before the burden of proof can shift.
The courts have applied the same approach to the “anticipatory” reasonable adjustment duty on service providers and public bodies: Reasonable adjustments by service providers>Burden of proof.
The general rules on time limits for bringing claims are outlined under Resolving employment disputes>Time limit for applications. However, there are special rules on when time starts to run in the case of omissions, including (normally) a failure to make reasonable adjustments.
- The default start point for the time limit (in the absence of various other things) is when the employer could reasonably have been expected to make the adjustment, assessed from the claimant’s point of view having regard to the facts which were known or ought reasonably to have been known by the claimant.
- Even if the claim is brought outside the time limit, the employment tribunal’s discretion to extend the time limit is wide (though of course one cannot be sure the tribunal will extend the limit).
- In some cases it may be possible to argue that the start of the time limit is later on the basis that the failure to make an adjustment is a continuing act (below).
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 taken to decide on failure to do something:
- when P does an act inconsistent with doing it; or
- if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.
So the time limit starts from when the employer could reasonably have been expected to make the adjustment, 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.
In the Abertawe case below, the Court of Appeal said this period ought in principle to be assessed from the claimant’s point of view, having regard to the facts known or which ought reasonably to have been known by the claimant at the relevant time. The court there also made the point that even where (as in that case) the claimant’s claim was made outside the three month time limit, the employment tribunal’s discretion to extend the time limit is wide:
Abertawe Bro Morgannwg University Local Health Board v Morgan (bailii.org), Court of Appeal, 2018
The claimant had a depressive illness. Because of this she was absent from work (apart from 2 days) from July 2010 until December 2011. She argued it would have been a reasonable adjustment to redeploy her to another role. An Occupational Health report in August 2011 said that she was unfit for work in any capacity. However the employment tribunal upheld her reasonable adjustment claim for the period from April to August 2011. The tribunal also exercised its discretion to allow her claim even though it was out of time – she had not brought her claim until March 2012.
The Court of Appeal upheld the tribunal judgment. In s.123(4) “the period in which the employer might reasonably have been expected to comply with its duty ought in principle be assessed from the claimant’s point of view, having regard to the facts known or which ought reasonably to have been known by the claimant at the relevant time”. In this case “the employment tribunal approached the matter correctly in asking itself at what point it became clear or should have become clear to the claimant that the Board was not complying with its duty to make reasonable adjustments by looking for alternative suitable roles to which she could be redeployed”. The tribunal found that this would probably have become clear to the claimant by June/July 2011.
Also the Court of Appeal held that the employment tribunal’s discretion to extend the three month time limit is wide. The tribunal does not have to be satisfied that there is a good reason for the delay in bringing the claim, though whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal should have regard.
Comment on the case: Duty to make reasonable adjustments and extension of time limits (trowers.com), May 2018.
The EAT in Kerr v Fife Council (bailii.org), 2021, said it doubted that merely maintaining the status quo was what Parliament had in mind when it used the expression “an act inconsistent with doing it”. A claimant might reasonably believe that the employer was taking steps to seek to address the relevant disadvantage, when in fact the employer was doing nothing at all.
A previous case on the similar rules under the DDA 1995 is Matuszowicz v Kingston Upon Hull City Council, 2009.
Time limits: Continuing act?
In Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil (bailii.org), 2013, it was held on the facts that the failure to make reasonable adjustments was a continuing act, and the claim was in time as it was brought within three months of the “continuing act period”: see Reasonable Adjustments…when does the clock start ticking? (imhrplus.com).
The reasonable adjustment duty may continue after the termination of the employment. See Former employees/ workers.
The Employment Code from para 6.32 gives examples of possible reasonable adjustments.
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. An unsuccessful claim for reasonable adjustments regarding stammering was Y v West Yorkshire Combined Authority, 2020.
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 (below) 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.
Auxiliary aids and services
Separately from the duty to adjust PCPs (above), there is an obligation on employers 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). ‘Auxiliary aid’ includes an auxiliary service (s.20(11) EqA). As ever in the Equality Act, “substantial” means only “more than minor or trivial” (s.212(1) EqA).
Examples of what this might include in relation to stammering:
- arranging appropriate mentoring to support the employee;
- training in, say, communication skills or telephone skills;
- provision of an altered auditory feedback device.
The employer has a defence if it did not have actual or constructive knowledge (above) of the disability and substantial disadvantage.
Separately from the duty to adjust PCPs (above), there is a duty to make adaptations in relation to the built environment.
This is an obligation on the employer, 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. “Substantial” means only “more than minor or trivial” (s.212(1) EqA). ‘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.
The employer has a defence if it did not have actual or constructive knowledge (above) of the disability and substantial disadvantage.