Reasonable Adjustments

Introduction

 

The duty to make reasonable adjustments aims to remove barriers that prevent disabled persons from integrating fully into the workplace. Employers are required to make reasonable adjustments to any of their provisions, criteria or practices that place a disabled person at a particular disadvantage compare to non-disabled persons. This is an onerous duty that can require an employer to do things for a disabled person that it would not have to do for others. 

 

The Statutory Framework

 

DDA 1995, s 4A sets out the substance of the duty to make adjustments and is the section that requires employers to make reasonable adjustments to prevent the PCP that they have applied having a disadvantageous effect.

DDA 1995, s 3A(2) provides that a failure to comply with the duty to make adjustments is discrimination.

DDA 1995, s 4 - Discrimination is only unlawful under the DDA 1995 if the circumstances fall within DDA 1995, s 4. Before any question of a breach of duty arises therefore the tribunal must firstly determine whether DDA 1995, s 4 entitles the person to make a claim. 

 The Reasonable Adjustments Test

 

There are four steps to a consideration of whether a person has failed to make a reasonable adjustment:

         

First Step                        Is the person protected?

Second Step                    Did the duty to make adjustments arise?

Third Step                      What adjustments were reasonable?

Fourth Step                     What did the employer know?

 

First Step - Is the Person Entitled to Make a Claim?

 

The starting point is for the claimant to show that he or she is entitled to the protection of the DDA. This requires the claimant to, show not only that discrimination occurred in the sort of circumstances envisaged in DDA 1995, s 4 but also that the claimant is in a category of persons entitled to make a claim. 

 

Second Step – Did the Duty to Make Adjustments Arise?

 

Part1 - identify the relevant PCP / physical feature

Part 2 - identify the non-disabled comparator

Part 3 - identify the nature & extent of disadvantage

 

             Part 1 – Identify the PCP

 

Identifying the provision, criteria or practices (PCP) applied by or on behalf of the employer is the first step in determining whether the duty to make a reasonable adjustment has arisen.

 

The definition of PCP is very broad and includes the old term “arrangements”. The definition is in fact so broad that, so long as the alleged PCP is connected to the employment in some way, it is likely that it will qualify as a PCP.

 

            Part 2 – The Comparator

 

Tribunals identify whether an employee has been substantially disadvantaged by an employer’s PCP by undertaking a comparison exercise. This exercise compares the claimant’s position with that of a non-disabled person who is known as the comparator. The comparison exercise for reasonable adjustments cases is different from the comparison exercises in other discrimination cases. The leading disability discrimination case dealing with the comparator is the case of Smith v Churchill Stairlifts [2006] ICR 524. 

 

The comparison exercise under the DDA 1995 asks whether the alleged disadvantage is substantial in comparison with persons, firstly who are not disabled, and secondly who are not disadvantaged by the PCP.

 

To illustrate, take an employer who has a rule that applicants who cannot type at 55 words a minute will not be offered an interview. The claimant in our example is disabled by arthritis which means that he cannot type at more than 40 words a minute. He is refused an interview. Four non-disabled people however were able to fulfil the criteria and were offered interviews. The PCP is the employer’s criterion that the candidate must be able to type at 55 words per minute in order to be offered an interview. The comparators in this example are the 4 applicants who were not disabled and who were not disadvantaged by the PCP because they were invited to an interview. 

 

             Part 3 – Identify the Nature and the Extent of the Disadvantage

 

Once the comparator is identified it is a relatively straightforward step to then identify the nature and extent of the disadvantage. An employer is required to make an adjustment to alleviate a disadvantage if the disadvantage is substantial. “Substantial” in this context bears a similar meaning to “substantial” in s.1 of the DDA. In other words the disadvantage must be “more than minor or trivial”.

 

If we return to our example above the disadvantage is that the claimant was not invited for an interview. This disadvantage is clearly more than minor or trivial because, without an interview, the disabled person cannot succeed in obtaining employment.

 

Third Step – Identifying What Adjustments are Reasonable

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Employers often find the question of what adjustments to make to be fraught with difficulty. How many adjustments should they make? How much money is it reasonable to spend? Do they have to consult medical evidence? It is often helpful for employers, when they are considering this issue to know how a tribunal would determine whether an adjustment was reasonable. If an employer understands this they can at least judge more accurately for themselves what the tribunal might expect of them in the particular circumstances that they are facing.

 

The test that tribunals apply when considering whether an employer has made a reasonable adjustment is an objective one. In many employment cases such as unfair dismissal cases an objective test means that the tribunal will ask itself whether the employer’s actions were within the range of reasonable responses open to the employer. This is NOT the test used in reasonable adjustments cases.

 

If the tribunal considers that there was an adjustment that was not made and which was reasonable then the employer will be found to have breached the duty. The tribunal is only concerned with what the employer did or did not do and the employer’s motive is irrelevant. The employer can accidentally comply with the duty. Equally the employer may try very hard to comply with the duty but fail to make an adjustment that the tribunal considers would have been reasonable. Although an employer will have a defence if it did not know that the person was disabled and disadvantaged by its PCP it is no defence to assert that the employer did not know that a particular adjustment was available. The objective nature of the duty to make adjustments makes it a very onerous duty and also makes it harder for employer to predict whether they have complied with it.

 

Since the tribunal is only concerned with what the employer did and did not the employer cannot breach the duty by failing to consult with a disabled employee or by failing to consider a particular adjustment. Since the reasonable adjustment must do something to actually alleviate the disadvantage all that matters is whether the adjustment was or was not made (Tarbuck v Sainsburys Supermarket [2006] IRLR 664). Consultation is only relevant insofar as it makes it more likely that the employer will comply with his duty if he has consulted the disabled employee.

 

The Reasonableness of an Adjustment

 

The best place to start any consideration of the reasonableness or otherwise of an adjustment is DDA 1995, s 18B(1). That section provides:

 

18B(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to—

(a)     the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b)     the extent to which it is practicable for him to take the step;

(c)     the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d)     the extent of his financial and other resources;

(e)     the availability to him of financial or other assistance with respect to taking the step;

(f)      the nature of his activities and the size of his undertaking;

(g)     where the step would be taken in relation to a private household, the extent to which taking it would—

(i)      disrupt that household; or

(ii)    disturb any person residing there.

 

Of course this is not an exhaustive list and other factors may well be relevant. As we have already seen the adjustment must be effective in order to be considered reasonable and it is clearly unreasonable to expect an employer to make an adjustment that does nothing to alleviate the disadvantage suffered by the disabled person. Other factors such as the expense of the adjustment are also relevant and the more expensive the adjustment the more unlikely it is that the tribunal will consider it to be reasonable.   The tribunal must consider the circumstances as a whole and so, for instance, the expense of the adjustment may be less relevant where the company in question is very wealthy and has many thousands of employees.

 

Conclusion

 

Employers are judged according to the tribunal’s own assessment of what is reasonable. Given that, in many circumstances, reasonable minds can differ it is difficult for employers to predict whether the tribunal will agree that they have implemented all reasonable adjustments. How can an employer maximise its chances of being found to have complied with the duty?

 

Unfortunately there is no right answer. This can be particularly frustrating for managers, most of whom make every effort to comply with their duties. The only way for an employer to maximise his chances of getting it right is to consult as widely as possible on what adjustments to make. Occupational therapists can be a great assistance in this regard, as can the disabled person him/herself.