17th August 2018 ❘

What is “reasonable” when considering reasonable adjustments?

What is “reasonable” when considering reasonable adjustments?

What is “reasonable” when considering reasonable adjustments?

Under the Equality Act 2010, an employer is under a duty to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage compared with a non-disabled person.

Most HR professionals and managers are well aware of the duty to make reasonable adjustments, but how that duty actually applies in practice can be confusing.

Who can suggest reasonable adjustments?

A suggestion or a recommendation of a reasonable adjustment can come from variety of sources. Most suggestions for reasonable adjustments come directly from the employee and can arise from day to day discussions with their line manager.

It’s also common for reasonable adjustments to be recommended by an individual’s GP or by an occupational health professional. Reasonable adjustments are often suggested if an employee is on long-term sick or if they are struggling at work to carry out their role. A GP might, for example, issue a fit note stating that the employee is unfit for work, but may be fit if reasonable adjustments are made. These adjustments could include a phased return to work, amended duties, altered hours or workplace adaptations. It is then for the employer to decide whether they will agree to the adjustments and whether they are reasonable.

Ultimately, the duty is on the employer to make the reasonable adjustments, and although the suggestions of the adjustments may come from a variety of sources, it will be for the employer to assess the reasonableness of each adjustment and make the decision on whether an adjustment can be made, based on the information reasonably available.

What factors will be considered when assessing reasonable adjustments?

The employer will be required to make the adjustment if it is reasonable to do so.

The former Disability Discrimination Act 1995 (DDA) set out the following factors that had to be considered when determining whether an adjustment was reasonable:

  • The extent to which the adjustment would have improved the disadvantage.
  • The extent to which the adjustment was practicable.
  • The financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer’s activities.
  • The financial and other resources available to the employer.
  • The availability of external financial or other assistance.
  • The nature of the employer’s activities and the size of the undertaking.

The DDA has now been replaced by the Equality Act 2010 and while the above factors are not listed in the Equality Act as mandatory, they are listed in the Equality and Human Rights Commission Code as factors that might be considered when deciding what is reasonable.

Ultimately, the test for reasonable adjustments is an objective one and each case will be assessed on its particular circumstances. It is important that employers consider each potential reasonable adjustment independently, instead of taking a blanket approach. Although an adjustment may be reasonable for one employer, this doesn’t mean that it would be reasonable for another employer. For example, a micro-business with one or two employees would not be expected to make the same level of adjustments that could be expected of a global organisation.

Are there any examples of reasonable adjustments?

Reasonable adjustments can come in all shapes and sizes and can range from physical changes to policy changes.

Over the years, there has been a wealth of tribunal cases that have thrown up new examples of reasonable adjustments that should have been considered by employers, including:

  • Changes to working hours and work patterns. This can include introducing flexi-time, part-time working or home working;
  • Allowing a phased return to work following a period of sickness leave;
  • Changes to work equipment and furniture;
  • Making physical adjustments to the workplace premises;
  • Modifying policies and procedures;
  • Transferring a disabled person to fill an existing vacancy.

(This is not an exhaustive list of all reasonable adjustments.)

The duty to make reasonable adjustments can be very useful and the aim is to encourage and help disabled employees to stay in employment. That said, not all requests by employees for adjustments are reasonable and this can often lead to employers viewing the duty as difficult and onerous.

It is important that employers go through the factors set out above when considering requests of reasonable adjustments and assessing whether they are, in fact, reasonable. If following the assessment you are still in doubt, then it’s a good idea to take legal advice. This can be a tricky area and failure to make reasonable adjustments can lead to a successful claim being brought by the employee, whatever their length of service with you. It’s therefore important that correct advice is taken from the outset when it comes to reasonable adjustments.

For more information on reasonable adjustments, contact Anna Lovett here.