What are reasonable adjustments at work and how can you use them to better accommodate employees and increase retention? Catherine Wilson, Employment Partner at W Legal Limited, explains when reasonable adjustments need to come into play and how organisations can assess and accommodate for disability.
A specific legal duty to make reasonable adjustments in the workplace first arose in the Disability Discrimination Act 1995. This created an obligation or duty on employers to make reasonable adjustments when a disabled employee is placed at a substantial disadvantage as a result of a provision, criterion or practice, physical feature of the employer’s premises, or the absence of an auxiliary aid.
The duty to make reasonable adjustments imposes a positive obligation upon employers to remove barriers to the effective participation in the workplace of those with disabilities. This obligation is now enshrined in the Equality Act 2010 and applies equally to mental as well as physical impairments.
When does the obligation for reasonable adjustments arise?
This obligation arises not only during the course of employment but even before employment has commenced. Employers are under an anticipatory duty to make reasonable adjustments for prospective employees. A key point, however, is that no duty arises where an employer lacks knowledge of the disability or disadvantage.
Knowledge is key. An employer will be deemed to have requisite knowledge if they are aware of the impairment and its consequences. They do not need detailed knowledge or specific diagnosis of the condition that creates an impairment. An employer may breach the duty to make reasonable adjustments by failing to take steps that the employee has never in fact asked should be taken. The employer’s duty is to make reasonable adjustments and not simply respond to reasonable requests.
How should an employer assess whether an employee has a disability?
This can be a more complex question than it first appears, as the common understanding of disability is not necessarily the same as the legal definition of disability under the Equality Act.
The legal definition of disability is a physical or mental impairment which has a substantial and long term adverse effect on your ability to carry out normal day to day activities. It will, however, be clear that medical evidence plays a substantial part in this process. This can include information from an employee’s GP or medical adviser.
In addition, an employer may seek guidance from its own or an outsourced Occupational Health Service as to the nature of the impairment, its impact on the employee’s ability to carry out normal day to day activities, and whether or not, in the opinion of the Occupational Health adviser, the employee has a disability and falls within the protection of the legislation.
The employer needs to take a balanced view of all the information. The employer is not bound by the decision of their occupational health service and cannot simply rubber stamp the opinion that an employee is not a disabled person or vice versa.
What does the phrase “provisions, criterions or practice” mean?
European case law asserts that these terms should be construed widely and, notwithstanding the UK’s departure from the European Union, it seems likely that this approach will continue to be adopted within the UK.
This is not unlimited. Note, for example, the refusal of the courts to accept that a procedurally flawed disciplinary investigation, which disadvantaged a disabled employee, fell within the definition of a practice because there was no evidence that the investigations conducted by the employer were generally inadequate. Similarly, a failure to stick to prescribed time limits, although potentially unfair, could not be characterised as a provision, criteria, or practice in a particular case because it was viewed as an occasional or one off act of incompetence, rather than an underlying or systematic failure.
What does reasonableness in the context of adjustments mean?
The obligation is to make reasonable adjustments, rather than the best possible adjustments (which could be infinite in scope). The crucial point in determining reasonableness in this context is the extent to which taking the particular step would prevent the discriminatory effect.
Practicalities are also relevant, as are financial/other costs and the potential disruption to the employer’s other activities. The employer’s size and extent of financial and other resources are also material, as is the availability to the employer of external financial or other assistance with respect to taking the particular step or action such as grant aid.
It is important to stress in this context that many reasonable adjustments have no or small cost, such as:
- Changes to working hours and workload
- Changes to the work environment
- The provision of extra support
There should be a great focus on consultation and discussion with the disabled employee and the provision of a comprehensive workplan. Employers should also make intelligent use of appropriate external guidance from specialist charities and other advisers.
Reasonable adjustments for mental health
Mental health is being increasingly treated as being on a par with physical health and wellbeing. Employers are seeing increasing numbers of employees who have a mental health disability and therefore need to consider what adjustments within the workplace can accommodate someone who is mentally ill and enable them to continue to perform their role effectively.
Medical evidence is obviously critical; however, there are several relatively simple and comparatively inexpensive adjustments that could be considered, namely:
1. Reduced or flexible working hours
These may include differing start and finish times, homeworking, and/or allowing unpaid time off to attend appointments and therapy.
Learn more: The employer’s guide to flexible working
2. Workload adjustments
This may include reducing workload and reassigning duties to other staff on a temporary basis. A change in job role or job sharing could also be of assistance.
3. Changes to the working environment
An open plan office may impact on an employee’s mental health, so relocation of the employee, hybrid home and office working, and creation of quiet spaces may all improve stress levels.
4. Extra support from other staff
This could take the form of a buddy or mentoring system. Bespoke training of staff and managers, together with the introduction of mental health first aiders, could all be considered.
5. Encourage conversations about mental ill health within the workplace
Build a wellbeing plan for affected individuals within the context of a wider workplace plan.
6. Consider discretionary changes to grievances and disciplinaries policies
This could allow support from a mental health worker, in addition to trade union representatives and/or work colleagues.
Reasonable adjustments for pregnant workers
Pregnancy is clearly not a disability. The impact of pregnancy on an employee’s ability to work can, however, mirror some of the consequences of disability. It is therefore another area where consideration should be given by employers as to at least temporary reasonable adjustments.
Learn more: Key pregnancy and maternity rights at work
Examples include letting pregnant workers sit during their shift, limiting any heavy lifting, temporarily reassigning them to other tasks, and allowing them to telecommute.
Employers should also be aware that if they are not able to safely accommodate the pregnant employee by, for example, offering a transfer or other reasonable adjustments, then the employee is entitled to paid suspension from work for the duration of the remainder of the pregnancy. This could be seen a substantial incentive for employers to implement reasonable adjustments of the kind described above.
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Written by Catherine Wilson
Catherine is an expert employment lawyer and HR problem solver. She works as an Employment Partner at W Legal Limited and also runs her own employment law and HR consultancy, training, and writing business, McBrownie Ltd.