In many situations, employers are under a duty to make what’s called ‘reasonable adjustments’ for employees or job applicants who have a disability.
Reasonable adjustments are essentially changes to working practices, or the work environment, to assist in situations where you are put at a ‘substantial disadvantage’ because of your disability.
You can read more about an employer’s duty, and what is meant by substantial disadvantage, in our previous article: ‘When does my employer have to make reasonable adjustments for my disability?’
In this article, however, we will be looking at when adjustments are considered to be reasonable – so that you can assess whether your employer has gone far enough in trying to assist you in your role.
What is meant by an adjustment?
There are many potential adjustments that an employer can make to help a worker with their disability. As you might expect, they can vary considerably depending on the workplace, the disability in question, and other circumstances.
Examples of adjustments include:
- altering working hours
- providing specialised equipment or furniture
- providing more breaks or different break times
- amending duties
- changing the employee’s place of work, such as to another of the employer’s locations or to home-working
- modifying disciplinary and grievance procedures
- modifying redundancy selection procedures
- modifying sickness procedures
- making physical changes to the workplace, such as providing ramps and lifts and widening doorways
- transferring the employee to a different role
However, you and your employer may disagree over what is reasonable – and this can give rise to a discrimination claim for a failure to make reasonable adjustments.
Disputes of this kind may have to be determined ultimately by an Employment Tribunal, so it is worth looking at how a Tribunal would decide what is reasonable when it comes to adjustments.
What makes an adjustment reasonable?
A Tribunal looking at the question of reasonableness will take into account the circumstances of both you and your employer. For example, if an adjustment would be helpful to you, but it would place a disproportionately heavy burden on your employer, a Tribunal is unlikely to consider it as reasonable. As such, it is a bit of a balancing exercise.
The Equality and Human Rights Commission Statutory Code of Practice lists a number of factors which a Tribunal can take into account when deciding if it would have been reasonable for an employer to make an adjustment. These are as follows:
- How effective the adjustment would be in preventing or reducing the substantial disadvantage. Case law has established that the substantial disadvantage does not need to be removed completely but there must be some prospect that the adjustment will help.
- How practical it is to make the adjustment.
- The costs, financial or otherwise, of making the adjustment.
- The resources, financial or otherwise, of the employer.
- Whether the employer can access financial or other assistance.
- How disruptive making the adjustment would be.
- The size and type of employer. Clearly, depending on the adjustment required, more will be expected of a large employer.
What should I do if my employer has not made sufficient reasonable adjustments?
A good first step is to discuss your requirements, and the reasons for them, with your employer. It may be possible to resolve your disagreements in this way. If this does not work, however, you should raise a grievance and follow your employer’s grievance procedure, including any appeal process should the dispute persist.
Your employer should take advice from either your medical advisers or an independent occupational health adviser. Whilst failing to do so is not a breach of their duty to make reasonable adjustments in itself, by failing to properly inform themselves, your employer may well not make necessary changes and end up being in breach of their duty as a result.
If your employer fails to make reasonable adjustments, you may have grounds for a discrimination claim against them.
However, you also need to be aware of time limits. The law states that a claim for failure to make reasonable adjustments should be made within 3 months less one day (plus any additional time added on by ACAS Early Conciliation – which is a legal requirement to bring a claim) from when the adjustments should have been made. Whilst the Tribunal will have a discretion to extend the time limit, it is not guaranteed so even if the grievance process is still on-going, it is important to start ACAS Early Conciliation within 3 months less one day from when the adjustment should have been made and ensure a claim is issued in time.
For information on the ACAS Early Conciliation process, and details on how it can influence claim time limits, read our article on Early Conciliation here.
If your claim goes to a Tribunal hearing, the Tribunal will make a decision based on the facts of your case. Where the Tribunal finds that an adjustment would have been reasonable, you will succeed – and your employer will not be able to make any further arguments to try to justify why they did not make the adjustment.
Can Truth Legal help you?
It can be tricky to work out whether your employer has done enough to make reasonable adjustments for you. Getting expert guidance can help you to understand your rights and confirm whether you have grounds for a claim.
If you would like advice and support from specialist employment lawyers, get in touch with us to discuss your situation.
