There is a more general page on employment services. This page is only for people interested in some difficult technical issues on how the reasonable adjustment duty applies to employment services.
Summary and introduction
There are two types of reasonable adjustment duty. The type that applies to most employment situations just looks at the position of the particular job applicant or employee. The other type, known as ‘anticipatory’ because it includes a duty to consider reasonable adjustments even before an individual disabled person presents themself, applies for example to the provision of services, and exercise of public functions. It involves looking at disadvantage to a group of disabled people rather than the individual claimant. For more on the two types, see Reasonable adjustments by service providers.
What type of reasonable adjustment duty applies to employment services? In my view, the position in outline is as follows:
- work experience – the duty is not anticipatory. The reasonable adjustment duty is broadly similar to that for a job applicant or employee;
- ‘vocational services’ as defined in s.56 EqA, including vocational guidance, training for employment, and helping find or retain employment – normal anticipatory duty as for provision of services generally, under Part 3 EqA;
- other employment services – the reasonable adjustment duty for employment applies, but there is an argument that here it is anticipatory (the duty for employment would normally not be).
How the reasonable adjustment duty applies to ‘work experience’ is not particularly problematic. See Work experience. This page deals with other employment services.
This page must come with a big health warning as it questions much of the official guidance (below).
A key point is how far the reasonable adjustment duty for employment service providers is ‘anticipatory’. Being anticipatory means that reasonable adjustments have to be considered by the service provider even in advance of a particular disabled person presenting themself. Normally for service providers the reasonable adjustment duty is anticipatory, because if is owed to disabled persons generally (see Reasonable adjustments by service providers). For employment, the reasonable adjustment duty is owed to the individual ‘interested disabled person’ and so is not normally anticipatory
‘Vocational services’
What are ‘vocational services?
‘Vocational services’ (EqA s.56(7)) are:
- provision of training for employment (excluding work experience), or provision of facilities for this;
- provision of vocational guidance;
- making arrangements for the provision of training for employment (or of work experience?), or for the provision of vocational guidance;
- provision of a service for finding employment for persons, or for assisting persons to retain employment.
Exceptions apply for training or guidance –
- otherwise covered by the EqA employment provisions (EqA s.56(3)); or
- for pupils/students accessed through their education provider (s.86(4)(5)): see Work placements related to education courses.
Reasonable adjustments for vocational services
For these ‘vocational services’ – such as vocational guidance, training for employment, and assistance in finding or retaining employment (see list above) – under s.55(7) the normal (anticipatory) adjustment duty for ‘provision of services’ under EqA Part 3 applies. Even so, claims go to the Employment Tribunal.
The legal reasoning is that s.55(7) says the reasonable adjustment duty under s.29(7)(a) applies. That duty is subject to EqA Sch 2 which says the duty applies to disabled people generally, which is interpreted as meaning it is anticipatory (see Reasonable adjustments by service providers).
Other provisions on the duty for service providers should also apply for vocational services. For example, a provider will not have to take steps which would fundamentally alter the nature of the service, or of his trade, business or profession: Sch 2 para 2(7) (s.212 says ‘trade’ includes ‘business’).
The object of these Equality Act provisions seems to be that there should be no ‘rowing back’ from the anticipatory duty imposed by the previous Disability Discrimination Act (DDA) rules (Public Bill Committee 23rd June 2009 col 381). The reasonable adjustment duty for ’employment services’ under the DDA – defined broadly in the same way as ‘vocational services’ in the Equality Act – was anticipatory (para 11.18 of the 2004 Employment Code of Practice). A reason for inserting s.55(7) was evidently to achieve the same under the Equality Act.
Note: despite the above, at least some official guidance (below) says the reasonable adjustment duty for vocational services is not anticipatory.
Employment services other than vocational services
What are ’employment services’ other than vocational services?
Employment services other than ‘vocational services’ (EqA s.56) are as follows: (‘work experience’ is not included below because separate rules apply to it)
- provision of a service for supplying employers with persons to do work;
- provision of a service in pursuance of arrangements made under section 2 of the Employment and Training Act 1973 (functions of the Secretary of State relating to employment), unless also a ‘vocational service’ as above;
- provision of a service in pursuance of arrangements made or a direction given under section 10 of that Act (careers services), unless also a ‘vocational service’ as above;
- the exercise of a function in pursuance of arrangements made under section 2(3) of the Enterprise and New Towns (Scotland) Act 1990 (functions of Scottish Enterprise, etc. relating to employment);
- an assessment related to the conferment of a relevant qualification within the meaning of section 53 (except in so far as the assessment is by the qualifications body which confers the qualification).
Reasonable adjustment duty for employment services other than vocational services
As mentioned above, ’employment services’ as defined in the DDA were roughly equivalent to ‘vocational services’ as defined in the Equality Act. ‘Employment services’ in the Equality Act is a wider term. So what is the position for Equality Act ’employment services’ which are not ‘vocational services’ (see list above), eg supplying employers with persons to do work?
Presumably here too, before October 2010 the reasonable adjustment duty would have been anticipatory under the DDA rules on general provision of services(?). Also official guidance (below) seems to indicate that the duty for these services is still anticipatory.
S.55(6) EqA applies the usual employment reasonable adjustment duty under EqA Sch 8, which is not normally anticipatory. However the reasonable adjustment duty here may be anticipatory because of some odd drafting. EqA Sch 8 para 3 says that (except as regards work experience, to which presumably para 2 applies) the reasonable adjustment duty applies to an ‘interested disabled person’. But Sch 8 para 16 (with para 4) defines ‘interested disabled person’ only in relation to work experience. For other employment services, Sch 8 says nothing about who is an ‘interested disabled person’.
This must be a drafting mistake. But what is the legal effect? It has been suggested the implication is that employment service providers owe the reasonable adjustment duty to the world at large, ie any disabled person who might seek to use the service, not just to those who have indicated they may be interested in the service (Discrimination at work: Employment law handbook, IDS, September 2017, paragraphs 30.58-60). In other words, like the reasonable adjustment duty on service providers in general, it is anticipatory. There may be some differences from the duty for vocational services though. For example Sch 2 para 2(7) would not apply because we are within Sch 8; Sch 2 para 2(7) says a provider will not have to take steps which would fundamentally alter the nature of the service, or of his trade, business or profession.
This is a possible view, but it will be for the courts to decide.
This view, that the reasonable adjustment duty here is anticipatory, seems to be supported by both the Explanatory Notes and the Employment Code of Practice (Official guidance below). However that may be weakened by the fact that they seem to be wrong on related issues. Also it is not clear that the courts would necessarily take the Code into account at all on a matter of statutory interpretation such as this: see Legal effect of statutory guidance and codes.
Official guidance
It will be apparent from the above that I do not agree with much of the official guidance, especially on vocational services.
The Equality Act Explanatory Notes say:
“The duty is an anticipatory duty except for providers of a vocational service, so that in relation to the provision of vocational services, employment service-providers do not need to deal in advance with reasonable adjustments for disabled people”
Paragraph 188 of the Equality Act Explanatory Notes (legislation.gov.uk).
As I’ve described above, the reasonable adjustment duty as regards vocational services (such as training for work) does seem to be anticipatory. For employment services other than vocational services and work experience, the matter remains to be settled by the courts.
According to the Employment Code:
11.57 Under the Act, an employment service provider has a duty to make reasonable adjustments, except when providing a vocational service. The duty to make reasonable adjustments is an anticipatory duty.
[Example:….]11.58 However, the anticipatory duty to make reasonable adjustments does not apply to vocational training (that is, training for work or work experience), where the duty is the same as in employment.
Employment Code, para 11.57-58
Again, there does seem to be an anticipatory reasonable adjustment duty as regards vocational services, including training for work, but not work experience where the duty is the same as in employment. The wording in the Code “except when providing a vocational service” is probably taken from s.55(6) EqA, but ignores the fact that s.55(7) imposes a reasonable adjustment duty for vocational services.
There is some non-statutory guidance on adjustments for employment services on the Equality and Human Rights Commission website: Examples of specific situations>Employment services (link to EHRC).
