- 8 minute read
- Last updated: 25th October 2019
If you have a disability, your employer is required to make reasonable adjustments in the workplace to accommodate either your physical and/or your mental health condition. This could include changes to policies or working practices, changes to the physical layout of the workplace, or the provision of extra equipment or support.
In this article, we look at your rights to request reasonable adjustments at work, the nature of any reasonable adjustments that your employer is required to make and what to do where your employer refuses a request to make reasonable adjustments.
This article covers:
- Rights to reasonable adjustments
- What are reasonable adjustments?
- Requesting reasonable adjustments
- What if my employer has failed to provide reasonable adjustments?
Under the Equality Act 2010, there are specific provisions in relation to employers not discriminating against either job applicants or employees by reason of disability.
An individual is regarded as having a disability if they have a physical or mental impairment, and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of an impairment is to be treated as long-term if it has lasted for at least 12 months, or is likely to last for at least 12 months, or is recurring.
Individuals are afforded legal protection from disability discrimination across the employee lifecycle, from the initial job application stage through to dismissals. For example, an employer must not discriminate against a job applicant in the following ways:
- In the interview or assessment arrangements or selection process.
- Relating to the terms on which the employer offers a candidate that job.
- By not offering a candidate that job.
Further, an employer must not discriminate against an employee by reason of their disability in the following ways:
- As to the employee’s terms of employment.
- Employee’s access, or lack of, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service.
- By dismissing the employee.
- By subjecting the employee to any other detriment.
To ensure individuals with a disability are not substantially disadvantaged when applying for or performing a job, the 2010 Act places a duty on employers to make ‘reasonable adjustments’.
Reasonable adjustments are changes that remove or minimise substantial disadvantages experienced by people with a disability, whether this is someone applying for a job, or a prospective or existing employee. ‘Substantial’ has to be more than minor.
The duty comprises the following three requirements:
- Where an organisational rule, criteria or practice puts a disabled individual at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the employer must reasonable steps to avoid or remove the disadvantage. The organisation is under a duty to change the source of discrimination unless it would be unreasonable to do so.
- Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the employer must take reasonable steps to avoid or remove the disadvantage. This could mean improving access or use of buildings of features, where reasonable, to remove the disadvantage for disable people.
- Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the employer must take reasonable steps to provide the auxiliary aid or service. This means offering additional support or service, where reasonable.
Importantly, you should never be asked to pay for the adjustments.
There may be instances where a proposed adjustment is considered by the employer not to be reasonable and, as such, the employer could refuse your request.
What is considered reasonable in the context of ‘reasonable adjustments’ will depend on the circumstances of each case. Relevant factors can include whether an adjustment is practical, the cost of the adjustment, what resources are available to the employer and how effective the adjustment is likely to be. For example, a larger organisation may have more resources and budget available to fund adjustments that a smaller business could not afford.
However, an employer would not be required to change the basic nature of your job.
In particular, whether in respect of a job applicant, a selected candidate or even an existing employee, an employer must consider making reasonable adjustments in the following circumstances, namely where:
- The employer is made aware of a person’s disability
- The employer could otherwise reasonably be expected to know the person in question has a disability
- The person asks for adjustments to be made
- The person is having difficulty with any part of their job
- The person’s sickness record, or any delay in returning to work, is linked to their disability
The requirements apply at all stages of the employer/employee relationship:
The recruitment process
Reasonable adjustments to the recruitment process, so as to allow potential candidates to be considered for a job role, can include the following:
- Providing information about a job, or the job advertisement itself, in alternative formats, for example, in large print, Braille or audio.
- Accepting applications in alternative formats wherever possible, for example, electronically.
- Arranging a ground floor interview for a wheelchair user.
- Permitting candidates to complete any written test using a computer.
The employer can either make enquiries with candidates as to what adjustments may need to be made prior to interview, or they can wait to be told.
However, having selected a candidate and made a job offer, the employer must then ask the selected candidate what adjustments they will need to be made to enable them to undertake their job role.
The job role
Reasonable adjustments to the way in which an employee carries out their job role can include the following:
- Making physical changes to the workplace, for example, installing a disability ramp for wheelchair users.
- Providing specialised equipment, for example, an adjustable chair for someone with back problems, or an ergonomically designed keyboard or wireless mouse for someone with arthritis.
- Permitting a disabled worker to work somewhere else, for example, on the ground floor for a wheelchair user, or even working at their own desk rather than hot-desking for someone with a social anxiety disorder.
- Offering employees training opportunities, as well as suitable recreation and refreshment facilities.
- Allowing employees who become disabled during the course of their employment, as a result of accident or illness, to make a phased return to work, including flexible hours or part-time working.
- Otherwise changing a person’s working hours or patterns of work to accommodate an existing disability.
- Modifying performance targets, for example, for someone returning to work following an illness, or struggling to maintain a certain level of work due to disability-related fatigue or other symptoms.
To make a request for reasonable adjustments, you will need to be certain that you qualify as disabled under the Equality Act, ie you have a physical or mental impairment or your impairment has a substantial and long-term adverse effect on your ability to do normal day-to-day activities.
It is important to stress that an employer only has to make reasonable adjustments where they know about the disability or could reasonably be expected to know about the disability and that you are suffering a disadvantage.
If your employer knows you are disabled, they are required to make reasonable adjustments if you need them. If your employer fails to do this, you should write to them, setting your request.
This will include informing your employer of your condition and that it has lasted, or is likely to last, at least 12 months and that its effect on your day-to-day life is substantial. You should also highlight the disadvantage(s) you are suffering as a result of the workplace rule, physical feature or auxiliary equipment (or lack thereof) that links to your disability.
You should also be able to show you are at a substantial disadvantage compared to people who don’t have a disability because of:
- An organisational rule, practice or other working arrangements. You will need to explain to your employer which policy or procedure is the cause of the disadvantage, how the disadvantage relates to your disability, what changes you propose should be made and how this change will address or remove the disadvantage.
- A physical feature of your workplace impacting your use of or access to the workplace environment and facilities. In your request, you should state which physical feature is causing the disadvantage, how it relates to your disability and is not affecting those without the disability, what changes are you requesting and how this will remove the disadvantage.
- A lack of additional equipment or help. Your request should explain the equipment or service you need, how you are disadvantaged due a lack of provision of the equipment or service, how the disadvantage relates to your disability, and how the equipment or service will remove the disadvantage.
In your request, you should also evidence that an individual without a disability would not be affected, or would be affected less than you, by the particular rule, feature or lack of equipment or support.
Your employer should then consider your request and whether your proposed adjustments are reasonable in relation to the organisation’s resources and the detriment being suffered.
If your request is refused, take advice on whether you have a complaint and potential disability discrimination claim under the Equality Act.
Employers are under a duty to make adjustments that are reasonable, per the provisions of the Equality Act. If an employer fails to meet this duty, it could be deemed unlawful discrimination and you may be able to bring a claim to an employment tribunal for disability discrimination.
To bring a claim for disability discrimination, you will have to show that the employer knew about your disability, or that they should reasonably have known, when deciding not to make the adjustments.
Before considering tribunal action, you will be expected to have exhausted all other avenues to resolve the issue. You will need to show you have made a formal request for reasonable adjustments and provided your employer with sufficient evidence of your disability and the substantial nature of the disadvantage you are suffering. If your request was refused, you may consider raising a grievance to try to resolve the matter within the organisation. This could include consideration of other solutions to address the disadvantage, such as flexible working or the employer applying for financial support or grants from charities or other relevant third party organisations.
If you still believe your employer’s decision not to make the adjustments was unfair, take advice on whether you could bring a tribunal claim and what this means for you continuing to work for your employer. You should not bullied or treated unfairly because you have made a complaint; this would be classed as victimisation, which is another form of unlawful workplace discrimination.
Combating disability discrimination at work requires action beyond dealing with individual discrimination complaints. Employers have a responsibility to consider what measures they can take to avoid cases of discrimination occurring by taking a proactive and informed approach to reviewing workplace practices and policies to ensure compliance.
Yet failure to make reasonable adjustments is one of the most common types of disability discrimination.
DavidsonMorris are experienced employment law specialists offering guidance and support to employees requesting reasonable adjustments or facing disability discrimination at work.
We have extensive experience in helping employees enforce their rights under the Equality Act. This includes bringing complaints against former employers were adjustments could have been made that might have helped you stay in a previous job.
In some circumstances, it may be appropriate and mutually beneficial for the employee and the employer to consider bringing the employment contract to an end with a settlement agreement on terms agreed by both parties. We have extensive experience of leading on settlement negotiations and drafting contractual terms that support your interests.
If you have a question or need help with a request for reasonable adjustments or a disability discrimination claim, contact us.