If you have a disability, any workplace can present you with unique problems. These might come from the way in which the work is carried out – workloads, practices, shift patterns – or maybe accessing and navigating the workplace is difficult.
In certain circumstances, employers are under a legal duty to make ‘reasonable adjustments’ for their workers, and any job applicants, who have disabilities. Generally, this means taking action to avoid or reduce disadvantages which these workers would face
The duty to make reasonable adjustments
Delving deeper into an employer’s duty, they must make reasonable adjustments for your disability in the following circumstances:
- where a provision, criterion or practice of your employer puts you at a substantial disadvantage;
- where a physical feature puts you at a substantial disadvantage; and/or
- where you would be put at a substantial disadvantage if you were not provided with an auxiliary aid.
As you can see, the words ‘substantial disadvantage’ appear in each of these circumstances. To work out if you are facing a substantial disadvantage, your situation will be compared to that faced by people who do not have your disability. Sometimes this will be a comparison with the general population or with a particular group of colleagues or job applicants, depending on the situation.
With that in mind, let’s look at each of the above circumstances in more detail:
Provision, criterion or practice
A provision, criterion or practice (often referred to as a PCP) can cover many different things, such as work-related policies, rules, decisions, arrangements and even expectations (an employer’s expectation that you will work long hours, for example).
PCPs can be formal or informal, and they do not always have to be applied across the whole organisation. Also, in some circumstances, a one-off act may count as a PCP.
Some specific examples of PCPs include:
- a requirement to work certain hours
- the application of a redundancy selection process
- procedures for dealing with disciplinary or sickness matters
- recruitment or promotion processes
- arrangements for breaks
- seating arrangements
- the requirement to attend a particular place of work
- allocation of parking spaces
If a PCP puts you at a substantial disadvantage because of your disability, your employer should make reasonable adjustments.
In this context, a physical feature means:
- a feature arising from the design or construction of a building;
- a feature of an approach to, exit from, or access to, a building;
- a fixture or fitting, or furniture, furnishings, materials or equipment; or
- any other physical feature or quality.
Again, many features are covered by this. A few examples are the width of doorways; whether or not the premises have a lift; the position and height of furniture; the type of equipment provided; and the type of seating provided.
Where you are placed at a substantial disadvantage when compared to others because of a physical feature, your employer should take reasonable steps to avoid the disadvantage. This might include removing the physical feature, altering it, or providing a reasonable means to avoid it.
An auxiliary aid is something that provides support to enable you to carry out your job. Auxiliary aids cover specialist equipment as well as services.
Equipment might include:
- an adapted keyboard, such as for Braille
- a larger computer screen
- special printers
- voice-activated software
Service-based auxiliary aids can include hiring a support worker to help you, or providing someone who can do sign language if your disability relates to hearing.
If your disability would place you at a substantial disadvantage without an auxiliary aid being provided to you, your employer may be required to make reasonable adjustments in this way.
What should I do if my employer has not made reasonable adjustments?
You may be able to make a discrimination claim against your employer if you have been placed at a substantial disadvantage (in any of the ways described above) and your employer has not made reasonable adjustments to help.
In order to do so, however, your employer must know, or ought to know, that you have a disability and that you have been placed at a substantial disadvantage.
As such, it is always best to put any requests for reasonable adjustments in writing, setting out clearly why they are required.
How do I know if an adjustment is reasonable?
If there is a dispute over an adjustment, it will ultimately be for an Employment Tribunal to decide whether or not the particular adjustment is reasonable. This will take into account a number of factors, such as the cost, disruption, and practicality involved. Our separate article, ‘Reasonable Adjustments – Has My Employer Done Enough to Help with My Disability?’ covers this question in more detail.
How long should I wait for my employer to make reasonable adjustments?
Some adjustments may take some time to be put in place (particularly where they relate to a physical feature or the sourcing and supply of specialist equipment) but your employer should act promptly. All too often, employers are slow to take action. This in itself is a failure to make a reasonable adjustment even if the adjustment is eventually made.
If reasonable adjustments have not been made within a reasonable period of time, you should raise a grievance with your employer.
However, you also need to be aware of the legal time limits involved. Claims for a failure to make reasonable adjustment should be made within 3 months less one day from the date when the adjustment should have been made. However, this time limit can be affected by the ACAS Early Conciliation process – read our article on ACAS Early Conciliation for more information about what this is, and how it can alter the deadlines for your claim.
The Employment Tribunal also has the power to extend the time limits in a claim. However, this is entirely at the Tribunal’s discretion, so it cannot be relied upon.
All of this means that, even if your grievance is still being dealt with by your employer, it is important to start ACAS Early Conciliation within 3 months less one day of the date when the adjustment should have been made. Otherwise, you run the risk of missing the legal deadline for your claim and being unable to claim at all.
How Truth Legal can help
At Truth Legal, our employment lawyers are specialists in disability discrimination. We can help you by:
- assessing whether you have a claim
- guiding you through the grievance process (including writing your grievance and/or grievance appeal)
- starting ACAS Early Conciliation and representing you through the process
- supporting and representing you in the Employment Tribunal
If you are concerned that your employer is not doing enough to support you in relation to your disability, please do not hesitate to get in touch and discuss your circumstances.