A reasonable adjustment for a disabled employee
THE Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled job applicants and employees.
The duty arises where a disabled person is placed at a substantial disadvantage by an employer’s provision, criteria or practice.
One of the questions I get asked a lot by employers is, what adjustments are reasonable?
Lawyers are often criticised for answering questions with the answer that it depends, but here it really does. What adjustments are reasonable is a fact sensitive question, depending on the employee’s disability, their role, the employer’s financial resources and whether adjustments would work to remove the disadvantage.
It is the tribunal that decides whether the adjustments were reasonable, substituting their own opinion for that of the employer. This differs from unfair dismissal cases where tribunals interfere only if an employer’s decision is outside the band of reasonableness.
The EHRC Code highlights a number of adjustments that might be reasonable for an employer to make. They include:
Making adjustments to premises. For example, widening a doorway or providing a ramp for a wheelchair user;
providing information in accessible formats. This could include producing instructions in Braille or on audio tape;
allocating some of a disabled person’s duties to another person. For example, a job involves occasionally going onto the open roof of a building, but the employer transfers this work away from a disabled employee;
altering a disabled person’s hours of working or training. This could include allowing a disabled person to work flexible hours to have additional breaks to overcome fatigue arising from disability;
training or mentoring. For example, all workers are trained in the use of a particular machine, but an employer provides different or longer training for a worker with restricted arm movements;
acquiring or modifying equipment. An employer might have to provide special equipment, such as an adapted keyboard for someone with arthritis, or a large screen for a visually impaired person;
employing a support worker to assist a disabled employee. For example, an adviser with a visual impairment is sometimes required to make home visits. The employer employs a support worker to assist her on these visits, and
adjusting redundancy selection criteria. When an employer is taking absences into account as a criterion for selecting people for redundancy, it might consider discounting periods of disability-related absence.
The recent employment tribunal decision in Waddingham v NHS Business Services Authority illustrates how fact sensitive the question of reasonable adjustments is. Mr Waddingham had worked in the NHS since 1984. His job was at risk of redundancy.
He was subsequently diagnosed with throat cancer. He began radiotherapy treatment and around the same time applied for an alternative position.
While he was signed off not fit for work due to his treatment Mr Waddingham was interviewed for the new role. He scored only 54%, not meeting the required competency level of 75%, and so was not appointed to the post. His claim to the tribunal included a claim for failure to make reasonable adjustments.
The tribunal found that the requirement to attend a competitive job interview and to score at least 75% put him at a substantial disadvantage. Even without specialist knowledge, the interviewers should have considered it likely that his performance at interview was adversely affected by the radiotherapy treatment and its side effects, causing considerable fatigue and affecting his concentration.
Mr Waddingham had put a positive spin on his condition, asking to come to interview sooner rather than later, but that did not absolve the employer from its obligation to consider reasonable adjustments.
The tribunal held that it was not necessary to lower the pass mark to allow Mr Waddingham to succeed, or to dispense with any form of assessment or delay the application process until he was better.
Rather, the employer should have assessed Mr Waddingham for the role on the basis of existing information about his abilities available from the jobs he had done within the NHS. This amounted to a failure to make reasonable adjustments.
Employers should always carefully consider whether reasonable adjustments are needed for disabled employees, even if they do not ask for these adjustments themselves.