Are employers legally required to provide reasonable adjustments?

We often get asked about whether employees are entitled to make changes to their working practices, and if we make changes for one employee whether there is an obligation to do the same for others because a precedent has been set. Questions vary from whether an employee can change their place of work for example to their home, if their working setup such as a desk can be altered, whether the process for how work is carried out can be changed and if dress codes must be followed strictly.

Under employment law there is an entitlement to reasonable adjustments if an employee is disabled.  Making reasonable adjustments is a positive obligation on employers to do something different for those who are disabled.  It does not set a precedent more widely across the workforce but a failure to implement changes for those who are disabled will be considered discriminatory.   So what does an employer need to consider before implementing any changes?

What is a disability?

Under the Equality Act 2010 (EA 2010), a disability is defined as a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

What is the duty to provide reasonable adjustments?

Employers have an automatic duty to provide reasonable adjustments to disabled job applicants, employees and former employees. This duty can arise where a disabled individual is placed at a substantial disadvantage by:

• An employer’s provision, criterion or practice;
• A physical feature of the employer's premises; and/or
• An employer's failure to provide an auxiliary aid.

Employers are not however expected to provide reasonable adjustments unless they know or ought to reasonably know of an individual’s disability and know that the individual is likely to be at a substantial disadvantage because of their disability.

Examples of potential reasonable adjustments

Guidance has set out the following examples of potential reasonable adjustments employers could make:

• Making adjustments to the premises;
• Providing information in accessible formats;
• Assigning some of the disabled individual’s duties to another worker;
• Moving the disabled individual to another vacancy;
• Moving the disabled individual to an alternative place of work or training, or arranging homeworking;
• Changing the disabled individual’s hours of work or training;
• Providing supervision or other support.

Responsibility for making reasonable adjustments falls on the employer. Case law such as Cosgrove v Caesar and Howie 2001 has shown that suggestions for potential adjustments should initially derive from employers, unless the suggestion is exceptional.

While employers primarily carry the burden for suggesting adjustments, guidance explains it is good practice for employers to ask disabled employees about potential adjustments they believe would benefit them, and to agree to any suggested adjustments that are reasonable.

Has this duty been effective in practice?

Recent research has found that this duty has not always been effective in practice as two in five employees with disabilities are not being provided with the reasonable adjustments that they need from their employers.

The survey revealed that 27% of employees who disclosed their disability to their employer are not in receipt of the adjustments that they require. This percentage increased to 59% for employees who had not disclosed their disability.

Some of the most common adjustments that disabled individuals stated they need include flexibility of their work schedule, additional time for tasks and clearer communication.

The research also suggested it may be beneficial for employers to regularly check whether any individuals are in need of adjustments as part of day-to-day running of businesses from recruitment to everyday management.

Consequences of failing to provide reasonable adjustments

Failure to comply with the duty to make reasonable adjustments constitutes a form of discrimination under EA 2010. Where a claimant is successful in their discrimination claim, an Employment Tribunal may award any, or all of the following remedies:

• Order the respondent to pay compensation;
• Make an appropriate recommendation with the aim of reducing the effect of the discrimination on the claimant; and/or
• Make a declaration regarding the rights of both parties relating to the proceedings.

A compensatory award has the potential to cause the respondent significant damage as compensation for discrimination claims is uncapped so awards may be large.

Conclusion

It is important that employers comply with the duty to make reasonable adjustments. While this is a well-established duty, it is clear from research that some employers are falling short of the requirement and putting themselves at risk of successful claims against them. As conversation for potential adjustments can emerge from employers introducing it into the day-to-day routine of their businesses, this should encourage discussion to be brought to the forefront of operation.