Western Mail

A reasonable adjustment for a disabled employee

- LAW & MORE

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.

 ??  ??
 ??  ?? > The EHRC Code highlights a number of adjustment­s that might be reasonable for an employer to make
> The EHRC Code highlights a number of adjustment­s that might be reasonable for an employer to make

Newspapers in English

Newspapers from United Kingdom