The duty arises where an employer knows or should reasonably know that an employee is disabled and that they are likely to be placed at a substantial disadvantage because of their disability.
In the recent case of Anderson v Turning Point Eespro, the Court of Appeal considered the duty that the Employment Tribunal was under in relation to an unrepresented claimant who had suffered a serious breakdown in her mental health. Although the case is fact specific and relates to the Tribunal's duty, it does provide a useful reminder for employers in relation to what may need to be taken into account, both generally and when conducting internal proceedings involving disabled or vulnerable employees.
As the Equality and Human Rights Commission Statutory Code of Practice states, the duty requires employers to take positive steps to ensure that disabled people can access and progress in employment and this goes beyond simply avoiding treating disabled workers unfavourably. We have therefore tried to distil some practical best practice points in relation to reasonable adjustments below.
- Proper assessment
It may be difficult for employers to reach conclusions in relation to whether adjustments are necessary or likely to be effective in avoiding any disadvantage. It is therefore important that the member of staff themselves is consulted in relation to the adjustments that may assist. Expert medical advice through, for example, an occupational health practitioner, can be invaluable in properly identifying disadvantages, their extent and the possible solutions to them.
- Avoid jumping to any conclusions
Care needs to be taken in long-term and repeated short-term absence situations, even where the reason for absence does not immediately suggest that the employer's duty is engaged. There may be an underlying issue or issues that are yet to be diagnosed or that a worker has not told you about. The same applies if any changes are noticed in other areas, such as performance and punctuality. It could be that there is a reason for this and this stems from the employee's health. Not all conditions manifest physically and mental health issues in particular can be difficult to address. Again it is important to talk to the member of staff to understand their circumstances and it may be helpful to seek medical input.
- Possible adjustments
The possibilities for potential adjustments are broad. It is therefore helpful to consider the range of potential adjustments that might be made for any given individual. This may include adjustments to premises, provision of information in accessible formats, reallocation or reorganisation of duties, consideration of potential alternative positions, adjustments to working hours, any additional training needs (whether for the member of staff concerned or their colleagues), changing the worker's place of work, adjustments to policies and procedures, allowances around absences, modifying equipment, adjustments to supervision, participation around supported employment schemes, use of trial periods, consideration of ill health retirement etc.
- Swift implementation
Adjustments should be implemented in a timely manner.
- Ongoing Review
The duty to make reasonable adjustments is an ongoing one, it may not be satisfied by simply making one adjustment. It is important that the effectiveness of any adjustments implemented are reviewed on an ongoing basis.
In the event that an employee with a disability makes a complaint to the Employment Tribunal, the Tribunal will consider objectively whether a particular adjustment would have been reasonable to make in the circumstances. If the Tribunal finds that the employer failed to make reasonable adjustments then this can result in an award of compensation to put the worker in the position they would have been had the failure not taken place, the making of a recommendation to the employer and/or the making of a declaration in relation to the rights of the worker.
For more information please contact Nick Murrell in our Employment team on 0117 314 5627.