Life can be tough if you are living with a disability, whether it’s a lifelong condition or something that has developed following an accident or with illness. It’s often about making changes, adapting, adjusting at home – and even with support, this can be exhausting. In the workplace, though, you shouldn’t be on your own. If you have a disability, your employer has a legal obligation to make ‘reasonable adjustments’ that will allow you to do your job alongside colleagues without your disability.
What is the duty to make reasonable adjustments?
The duty to make reasonable adjustments is set out in the Equality Act 2010. It’s one of a series of obligations the legislation places on an employer to combat discrimination in the workplace, including discrimination on grounds of disability. In practical terms, this may be one of the most useful parts of the legislation, because it puts a legal obligation on your employer to take steps to remove any ‘obstacles’ – physical or otherwise – in the workplace that prevents you from doing your job in the same way as someone without the condition. The duty also applies to recruitment.
Although the duty only applies in respect of employees and workers whose condition falls within the definition of a ‘disability’ used in the legislation – physical and mental conditions which have “…a substantial and long term adverse impact on your ability to carry out day to day activities” – in practice this is quite wide.
What is a reasonable adjustment?
What is a ‘reasonable adjustment’ will depend on your condition and the sort of help you need to enable you to do your job. If you are partially sighted or blind, it could mean the availability of specialist software to help you use a computer. For someone with a disability which makes it difficult to travel long distances, it could be a transfer to an office closer to home. It can mean physical adaptation of premises or changes to policies and practices. In a recent case, it would have been a reasonable adjustment for an employer to allow a candidate for a job to respond to a multiple choice psychometric test using short written answers rather than the multiple choice options.
You may not be aware of everything that’s available that could help, or how changes could be made. There are organisations that can help you and your employer work out what adjustments would help you continue to do your job.
Whether an adjustment will be reasonable or not depends on the size of your employer, what it can afford, and the benefits the adjustment would bring. An expensive adjustment that will not make much difference is less likely to be reasonable than a less expensive adjustment that will make a big difference – but a larger employer will be expected to do more than a smaller one. In many cases, the solutions are simple, for example adjusting working practices – in others they will be more complex.
Do I have to suggest things?
Following on from the question of what is a reasonable adjustment, you may be concerned that it’s up to you to suggest what might be a reasonable adjustment. This is not the case. There is no obligation on you to suggest adjustments – it’s for your employer to assess what adjustments would help you and will be reasonable. They may involve an occupational health specialist to do this, and they should discuss their conclusions and proposals with you before putting anything in place: with many conditions, the impacts are different on different people, so your employer has to make sure that what has been suggested will work for you, rather than simply imposing a solution that worked for someone else.
How much must my employer do?
Following assessment, your employer may decide, or receive recommendations to the effect, that there are a number of adjustments that would help you to carry out your job, given the disability you are living with. Your employer should do everything that is reasonable – not just adopt one of the measures.
Your employer may have to engage other employees – your manager, co-workers, people you deal with in other departments – to implement the adjustment – but should respect your confidentiality. Just because another employee is obstructive to the change does not mean the employer should not go ahead.
How long do I have to claim if my employer fails to make reasonable adjustments?
The general rule for most employment law claims is that you have 3 months from the date of the employer’s failure to make reasonable adjustments to trigger ACAS Early Conciliation. Ideally, you should first try to resolve the matter with your employer using the grievance process, because employment litigation is often stressful, but always remember the 3-month deadline.
In some circumstances, it may be possible to argue that the employer has not only failed to make a reasonable adjustment, but has continued to do so – which means you may still be able to claim even if the initial failure happened more than 3 months ago. You should not rely on this though, and should always aim to make the 3-month deadline.
What compensation could I receive?
Your claim for a failure to make reasonable adjustments may well be one of a number of claims you bring against your employer, perhaps including direct or indirect discrimination. If the failure to make reasonable adjustments led to you leaving your job, there may be an unfair dismissal claim too. Your compensation will be calculated accordingly, and your employment law solicitor will be able to give you a better idea once he or she has talked to you about how you have been treated and what the consequences have been.
In addition to compensating you for your losses – usually loss of income if you are unable to work, you may be awarded compensation for the hurt and distress you have suffered. This is called ‘injury to feelings; and is calculated with reference to ‘bands of compensation’. These bands (known as ‘Vento bands’ after the case in which the concept was introduced) currently stand as follows: Lower band £600 – £6,000; the middle band between £6,000 and £18,000; and the upper band £18,000 – £30,000. The Employment Tribunal can adjust these figures to take account of inflation. However, it is likely these bands will officially increase following recent consultation in July/August 2017 – watch this space!
If the failure to provide reasonable adjustments has led to a personal injury – for example it has caused you anxiety or another form of psychiatric injury, then you may also be able to bring a Personal Injury claim in the employment tribunal alongside the claim for failure to make reasonable adjustments. We often find that many employment solicitors forget to bring a personal injury claim within an Employment Tribunal. As we specialise in both personal injury and employment law, we can advise on both elements of the claim.
While many employers will be happy to comply with the duty to make reasonable adjustments, sadly there are some that won’t, and it can be a frustrating and upsetting time. If you’d like to talk to us about your situation, we can advise you on your options, the next steps to take, and whether legal action might be appropriate.
Often, we can offer a No Win, No Fee agreement to pursue a reasonable adjustments claim. And whenever we can, we use our client’s Legal Expenses Insurance at no – or very little – cost to them in order to bring a reasonable adjustments claim.
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