30th January, 2012
The Equality Act 2010 retains a duty on employers to make reasonable adjustments to premises or working practices to alleviate any disadvantage faced by disabled job applicants and employees. A failure to comply with this duty is a form of discrimination.
Although there is no definitive list of possible adjustments that an employer may take contained in the Equality Act 2010 there is now a Code provided by the Equality and Human Rights Commission, which lists possible adjustments which may be taken into account in deciding what steps may be reasonable for an employer to have to take (which might include; making adjustments to premises, providing information in accessible formats and allocating some of the disabled person’s duties to another person). The cost of adjustments will be one relevant consideration as to whether adjustments are reasonable. However, employers should not conclude that an adjustment needs to be cost effective to be reasonable.
The phrase “reasonable adjustments” often finds itself the subject of deliberation by the Courts. The assessment is very much fact sensitive. The test has been held to be objective and requires the tribunal to substitute its opinion for that of the employer and to decide if the employer’s time and resources should be spent in a particular way. This differs from the position in unfair dismissal cases where tribunals interfere only if employers’ decisions are outside the band of reasonableness. This is why the reasonable adjustment provision is such a powerful tool for claimants.
In Salford NHS Primary Care Trust v Mrs A Smith UKEAT/0507/10, Mrs Smith was on long term sick leave with chronic fatigue syndrome. She was offered redeployment and retraining by the Trust, but felt this was not suitable. The employment tribunal found that the Trust had failed to make reasonable adjustments as it had not considered offering rehabilitative work. The Trust successfully appealed to the Employment Appeal Tribunal (EAT) who found that reasonable adjustments are concerned with enabling a disabled person to remain in or return to work and not to offering a career break or rehabilitative non-productive work. This confirms guidance provided in earlier case law that the reasonable adjustments duty only covers substantive adjustments rather than procedural steps such as consultations, investigations and trial periods.
In Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, Mr Foster was on long term sickness absence due to stress. He was dismissed on capability grounds and won a case for unfair dismissal and disability discrimination at tribunal, which was appealed by the Trust. In considering reasonable adjustments, the EAT said it would have been a reasonable adjustment to have put Mr Foster on the redeployment register even if there was only a prospect of a redeployment opportunity becoming available. Thus a prospect of an adjustment removing a disadvantage is sufficient to make reasonable adjustments. The Trust lost the appeal. Therefore employers need to consider the extent to which the adjustment would lower the disadvantage faced by an employee with a disability. A mere prospect of an adjustment removing a disadvantage is sufficient to make an adjustment reasonable and there is no need for that prospect to be good or real but simply, a potential.
These recent rulings along with the Code aim to clarify what is meant by “reasonable adjustments” but as the assessment is very much fact sensitive there will no doubt be further deliberation of the phrase by the Courts.
If you are currently facing problems with reasonable adjustments or want any more information regarding disability discrimination, please do not hesitate to contact Claire Brook in our Employment Team.
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