The Equality Act 2010 imposes the duty of care on employers to make reasonable adjustments for disabled job applicants, employees, office holders, contract workers and, in certain circumstances, former employees. Where this duty arises the disabled person must be treated more favourably than others in order to remove any disadvantage.
When does the duty arise?
The duty to make reasonable adjustments is triggered when the employer knows or ought reasonably to know that the person in question is disabled and is likely to suffer a substantial disadvantage because of their disability.
It can be triggered due to a new diagnosis of a health condition. This could be during sickness absence. Consequently, regular communication is vital, particularly during long term absence, to avoid becoming in breach of duty. Any adjustments should be agreed and in place before the person returns to work.
How do I know if the individual has a disability?
The Equality Act states that a person has a disability if:
If the answer to the any of the questions below is yes then it is more likely that the condition is a disability.
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial? (For example are the effects cumulative, progressive or likely to recur? Is medication rectifying the effect of the condition?)
- Is that effect long-term?
There is also a list of deemed disabilities and excluded conditions.
- Examples of deemed disabilities are blindness, cancer, HIV infection and multiple sclerosis
- Examples of excluded conditions are addictions (unless they have been bought about by medical intervention)
This list is by no means exhaustive and it is very rarely clear cut in any case. Advice should be taken to avoid costly mistakes. A medical professional can assist by providing an expert opinion on whether there is a disability and what adjustments need to be made.
What is reasonable?
Consideration should be given to:
- will the adjustment remove or reduce the disadvantage?
- is the adjustment practicable?
- is the cost is proportionate to the financial standing of the business?
- is external funding available?
- will there be an undue burden on the business?
- will the adjustment be disruptive to the business?
The effect of the adjustment on the rest of the workforce may be a consideration. However, it is unlikely that a decision not to make an adjustment based on this factor will provide a defence if a disability discrimination claim is made.
What kind of adjustments might be required?
A disabled person may be disadvantaged by:
- workplace provisions, criterion or practice e.g. working time, providing documents in different formats, requirement to make meeting notes
- a physical feature of the workplace e.g. parking, heating, lighting, furniture
- a failure to provide an auxiliary aid e.g. aids for hearing
Examples of adjustments may include:
- a change to working hours
- home working, where appropriate
- a phased return to work
- providing car parking spaces close to the building
- providing disabled car parking spaces
- providing help with transport to and from work
- providing adapted furniture
- providing alternative work (with possible pay protection, depending on the circumstances)
Failure to make reasonable adjustments is a type of disability discrimination. Successful claims can be very costly both financially and to the reputation of the employer.
Being an Excellent Employer
This post focuses on the legal requirements of dealing with disabilities. This is the minimum you need to do to ensure you stay on the right side of employment law. Often businesses are so worried when they hear the word ‘disability’ because they know it means they have to take action. It almost implies that they think they don’t need to take it seriously and they can breathe a sigh of relief if a health issue isn’t a disability (of course that doesn’t apply to anyone taking the time to read this blog post) . Excellent employers will go above and beyond the law to ensure a happy and healthy workplace for all of their employees, regardless of whether they have a disability or not.
My top tips towards a healthy workplace for everyone:
- Ensuring that people feel comfortable raising any issues, have no fear of recrimination and don’t feel they are being a nuisance
- Ensuring people know who they can talk to about health issues
- Ensuring everyone knows what the business needs to do to carry out their duty of care and why so that feelings of resentment against someone who has asked for a reasonable adjustment is reduced
- Check your policies and procedures to ensure they don’t put anyone with a disability or other health issue at a disadvantage
- Be risk aware – for example, carry out regular workstation risk assessments, report near misses and accidents
- Talk to your workforce regularly and get to know them personally so that you are more likely to spot behavioural changes that could indicate a mental health issue
- Carry out refresher workshops on health related issues that can be useful for your people both in the workplace and at home e.g. manual handling, managing stress and anxiety
- Ensure your managers are aware of risks, know how to spot them and what to do to mitigate them