It is often tempting when reading an article or book (or even an employment tribunal judgment) to skip to the end.
This can often lead to misunderstanding or at best a superficial understanding of the whole. I often see employers get into difficulty when considering reasonable adjustments because they skip to the end in a slightly different way.
A common scenario an employer may encounter is a disabled employee informing them that they would like an adjustment to be made. Usually the employee will declare that they consider the adjustment is reasonable. The common response from an employer faced with this scenario is to consider the suggestion and decide whether the adjustment is reasonable or not and, therefore whether to implement it or not. This approach is too simplistic and is, essentially, skipping to the end. As with other parts of life, skipping to the end is not usually a good idea!
The best place to start is, unsurprisingly, at the beginning. The beginning in this context is when the duty on an employer to make reasonable adjustments actually arises. The duty can arise where a disabled person is placed at a substantial disadvantage by any of the following three types of scenario (provided the employer knows or ought reasonably to know that the employee is disabled and likely to be placed at a substantial disadvantage):
- An employer’s provision, criterion or practice (“PCP”);
- A physical feature of the employer’s premises; or
- An employer’s failure to provide an auxiliary aid.
So, put more simply, just because an employee is disabled does not mean that the duty to make reasonable adjustments is triggered. The duty is only triggered where the disability puts an employee at a substantial disadvantage. Whilst in many cases the substantial disadvantage caused may be obvious, the danger of not starting at the beginning is that the substantial disadvantage is not identified.
Once the substantial disadvantage is identified, the next stage is a consideration of potential adjustments. The purpose of the adjustment is to, as far as possible, eliminate the substantial disadvantage and to enable the employee to remain in or return to work. The significant benefit of identifying the substantial disadvantage is that it will help the employer assess whether any adjustments identified are reasonable or not.
When assessing the reasonableness of a proposed adjustment, many factors can be relevant including but not limited to:
- The extent to which the adjustment will eliminate the substantial disadvantage;
- The practicability of the adjustment;
- The cost of the adjustment and the extent it might disrupt the employer’s activities;
- The employer’s financial resources;
- The availability of external financial or other assistance; and
- The size of the employer and the nature of its activities.
When working through these steps, employers will often be assisted by seeking expert medical advice in addition to ensuring a flowing, and ideally open, dialogue with the employee. Medical advice can help the employer to better understand how a disability affects a particular individual, whether they are put at a substantial disadvantage and what adjustments might assist.
Employers should have in their mind that the duty to make reasonable adjustments is a positive obligation placed on them as employers and they should be proactive and not solely reactive to requests from employees!
Some final thoughts (for those that may have skipped to the end of this article). As well as not skipping to the end keeping a record, of the steps taken and the thought process that underpinned the decisions that were taken, may prove to be a very useful paper trail if the employer is later faced with the prospect of responding to a claim where an employee alleges that there has been a failure to make reasonable adjustments.
For more information or advice on this or any other Employment Law & HR issue, please get in touch with James Symons on 0115 9 100 250, or send him an email.
Posted on March 21, 2024
