Reasonable Adjustments for Disability

Reasonable Adjustments – The Origin and Scope of the Duty

1. The idea which underpins the duty to make reasonable adjustments is “mainstreaming”. The idea is to compel those under the duty to remove, wherever reasonable, the obstacles that hinder the involvement of people with disabilities in mainstream employment.

2. The duty is set out at Equality Act 2010, ss. 20 to 22 . It is a close cousin of the prohibition of indirect discrimination. Until the Equality Act 2010 came into force, there was no prohibition of “indirect disability discrimination” in the ordinary sense. That situation has been altered by EA 2010, s. 19 which lists disability alongside the other protected characteristics in defining unlawful indirect discrimination.

3. What are the differences between the two duties? Both deal with circumstances where an employer’s provision, criterion or practice disadvantages someone because of their disability. However:

(1) The duty in s. 19 imposes no duty on the employer to remove the disadvantage, merely to compensate for the disadvantage;

(2) S. 20 is engaged where the employee is put at a “substantial” disadvantage. S.19 requires a “particular” disadvantage. It is not clear if the difference in wording is intended to denote a difference in threshold. What is certainly different, however, is that to succeed in an indirect discrimination claim, the employee must establish not simply that he is disadvantaged but that he is a member of a class of people sharing the protected characteristic that would be disadvantaged;

(3) S.20 covers not just “PCPs” but also physical features and absence of auxiliary aids.

4. EA 2010, s. 20 provides:

20 Duty to make adjustments

(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

(6) Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

(7) A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A’s costs of complying with the duty.

(8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section.

(9) In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to—

(a) removing the physical feature in question,
(b) altering it, or
(c) providing a reasonable means of avoiding it.

(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to—

(a) a feature arising from the design or construction of a building,
(b) a feature of an approach to, exit from or access to a building,
(c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or
(d) any other physical element or quality.

(11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.

(12) A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property.

(13) The applicable Schedule is, in relation to the Part of this Act specified in the first column of the Table, the Schedule specified in the second column.

5. Even where the employee is disabled and a PCP, physical feature or want of auxiliary age puts them at a substantial disadvantage, the duty will not arise where an employer does not know (and could not reasonably be expected to know) that:

(1) a job applicant is disabled; or
(2) an employee is disabled and is likely to be placed at the relevant disadvantage. [EA 2010, Sch 8, Pt 3, Para 20]

6. The case of Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 had created some uncertainty as to how this exception was to be applied. The case concerned the old wording under the Disability Discrimination Act 1995. The EAT appeared to suggest that in order to escape the application of the duty the employer had to establish all four of the following:

(1) He did not know of the disability;
(2) He could not reasonably have been expected to know;
(3) He did not know of the substantial disadvantage; and
(4) He could not reasonably have been expected to know.

This interpretation seemed to mean that an employer might be subject to the duty even where it was unaware (and could not reasonably have been expected to be aware) of the disability. That possibility has now been eliminated by the EAT decision in Wilcox v Birmingham CAB Services Ltd [2011] EqLR 810. Mr Justice Underhill takes the view that unless the employer had actual or constructive knowledge of the disability, the question of substantial disadvantage did not arise.

7. The case raised an interesting question about when an employer may be said to know that an employee is disabled. The context was a dispute over the exercise of a mobility clause. Cutting a long story short, the claimant said that travelling on public transport made her anxious. Her Cognitive Behavioural Therapist agreed, producing a report saying that she was at risk of panic attacks and should work somewhere she could drive to. The Respondent obtained a report from an Occupational Health Consultant who concluded that there was “no substantial evidence of psychiatric diagnosis” nor were there medical grounds for alternative travel arrangements.

8. There was a very drawn-out grievance process which ended with the claimant resigning and commencing proceedings. It was only at that point that an opinion was obtained from a Consultant Psychiatrist who diagnosed Agoraphobia. On the basis of that diagnosis, the claimant was clearly a disabled person. Was the respondent to be taken to have had actual or constructive knowledge of that fact? The EAT decided that the respondent did not have the requisite knowledge at the relevant time. It was not a question of their having lacked the specific diagnosis – an employer can appreciate that an employee has a disability even if a precise diagnosis of their condition is not available. The tribunal should ask whether the employer has actual or constructive knowledge of an impairment that had the necessary substantial and long term adverse effect. In the present case, it was felt that it had been difficult to disentangle what the claimant was saying about her condition from the broader dispute between the parties. There was also evidence that the claimant had not been co-operative in relation to obtaining a report and that was a factor relevant to the question of constructive knowledge.

 The Content of the Duty

9. The employer must take such steps as it is reasonable to have to take either to avoid the disadvantage or, in auxiliary aid cases, to provide the aid (EA 2010, s. 20 (3) to (5)). The employer cannot require the employee to pay of its costs of complying with the duty (EA 2010, s. 20 (7)).

10. EA 2010, s. 22 allows for regulations to further define the duty including defining what would and would not be reasonable in particular circumstances. No regulations have yet been issued that apply in employment cases.

11. The DDA 1995 had, at s. 18B guidance as to what sorts of measures might be required and what factors might be taken into account in determining reasonableness. The factors that were identified included:

(1) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(2) the extent to which it is practicable for [the employer] to take the step;
(3) the financial and other costs which would be incurred by [the employer] in taking the step and the extent to which it would disrupt any of his activities;
(4) the extent of [the employer’s] financial and other resources;
(5) the availability to [the employer] of financial or other assistance with respect to taking the step; and
(6) the nature of [the employer’s] activities and the size of his undertaking.

12. The steps that might be taken included making adjustments to premises; allocating some of the disabled person’s duties to another person; transferring him to an existing vacancy and altering his hours of work and training.

13. The reasonableness factors and example adjustments do not appear to have been carried across to the EA 2010. However, there is no doubt that they remain relevant and they have been substantially reproduced at Chapter 6 of the EHRC’s Code of Practice on Employment.

14. Clark v Novacold [1999] IRLR 318, EWCA was authority for the proposition that the duty to make reasonable adjustments did not apply to a dismissal. Following Aylott v Stockton on Tees BC [2010] EWCA Civ 910, that would seem no longer to be the cases. In an admittedly obiter consideration of the issue, Mummery LJ was inclined to accept that the effect of Framework Directive 2000/78/EC, Art 3(1)(c) was to require dismissals to fall within the scope of the duty.
15. In Gomez v Glaxosmithkline Services Unlimited [2011] EqLR 804, the EAT considered the case of a claimant who suffered from severe depression and panic attacks. The claimant was found to have been leaving the site at which he worked without authorisation and by using a colleague’s security pass. He was dismissed for gross misconduct. He argued that the penalty should have been “adjusted” and that he should have been given a warning instead. The EAT concluded that the employer could not be reasonably required to take such a step as it risked the employer appearing to condone the practice.

16. Burke v College of Law and another [2011] EqLR 454 EAT is a further recent example of an employer determining that a proposed adjustment would not have been reasonable. It is a case concerning a “qualification body” – one of the categories of non-employers covered by the Act. The claimant, who has MS, was re-sitting LPC exams. A series of adjustments were made including allowing them more time. However, the claimant had asked for still further time and the opportunity to take the exams at home. Those adjustments were declined. The EAT concluded that the examination’s purpose was to “assess the ability of the candidate to demonstrate their competence and capability in the subject matter under time pressure.” The time restriction was, therefore, a competence standard.

17. Lowe v Cabinet Office [2011] EqLR 803 is an employment tribunal case which takes a similar line to that in Burke. The claimant had Asperger’s Syndrome. She applied for admission to the Civil Service Fast Stream. The selection exercise involved application of a criterion that required a high standard of communication skills and assessment by group exercise. The tribunal accepted that no adjustment was reasonably required. The exercise was to find high quality applicants and the proposed adjustments would have destroyed the essence of the exercise.

18. Noor v Foreign and Commonwealth Office [2011] EqLR 448 EAT is a case in which a claimant was successful in contending that a selection exercise should have been adjusted. The claimant has dyslexia and dyspraxia. He responded to a job advertisement that identified 4 key competencies. Unfortunately, the advertisement contained a mistake. It had included “problem solving and judgment” as a competency whereas it had been intended to include a competency that dealt with “strategic awareness”. At the interview he was asked questions about strategic awareness and was unprepared to deal with them. Because of his impairments he was at a substantial disadvantage in responding to the changed circumstances. He as ked for a re-interview but was told that his scores measured against the other competencies were so low that even if the score against the disputed competency was disregarded he still would not have been appointed. The EAT concluded that it may be reasonable to make an adjustment even when that would not prevent the disadvantage. The question whether the adjustment would have made any difference went to remedy.

19. In Clark v Newsquest Media [2011] EqLR 932 an employer required a diabetic employee to test her blood an inject herself in private. The tribunal concluded that employer was acting in breach of the duty.

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