A look at your legal duty to make reasonable adjustments

History

The Equality Act 2010 merged 116 pieces of legislation, the 9 most significant being:

• The Equal Pay Act 1970
• The Sex Discrimination Act 1975
• The Race Relations Act 1976
• The Disability Discrimination Act 1995
• The Employment Equality (Religion or Belief) Regulations 2003
• The Employment Equality (Sexual Orientation) Regulations 2003
• The Employment Equality (Age) Regulations 2006
• The Equality Act 2006, Part 2
• The Equality Act (Sexual Orientation) Regulations 2007

If we look at equality from a historical perspective, by law it wasn’t until the

• 1960s that people of different races were protected from discrimination.
• 1970s that men and women were required to be treated equally and paid the same for the same job.
• 1990s that disabled people were protected from discrimination.
• 2000s that lesbian, gay and bisexual couples had the right to become civil partners, followed, in the coming decade, by the right to marriage.

Duty on employers to make reasonable adjustments for their staff

The Equality Act 2010 placed a duty on employers to make reasonable adjustments to any elements of the job which place a disabled person at a substantial disadvantage compared to non-disabled people. This applies to anyone who meets the Equality Act 2010’s definition of a disabled person.

The duty on employers to make reasonable adjustments for disabled people applies when there is a substantial disadvantage compared to non-disabled people in the following three situations:

• Due to the rules, policies, practices or requirements of an organisation – explicit or implicit. Referred to within the Act “as cause of provision, criterion or practice”.
• Due to a physical feature of an employer’s premises.
• Due to a lack of auxiliary aid.

If an adjustment cannot reasonably be made, you can legally decline to make an adjustment (read about what’s considered reasonable, in terms of reasonable adjustments(link to chapter)). If a case was brought before an Employment Tribunal they would assess whether your decision to decline the adjustment was just in terms of practicality or cost.

It should be noted that an employer is only subject to the reasonable adjustment duty where they are aware that an employee is disabled. If they are unaware, they are not in a position to be able to make a decision on any reasonable adjustments that may be required. But, tread carefully here, if any employee of your organisation is aware that another employee lives with a long-term health condition it may be deemed that your organisation should have been aware of this. We recommend having workplace adjustments conversations with all your employees, not just those that have proactively shared and adjustment need.

Since the removal of employment tribunal fees in 2017, there has been a surge in disability discrimination cases. Between July and December 2019 over 2000 cases were brought to tribunal. Evan Odell of Disability Rights UK believes this is in part due to organisations being unaware of:

• their legal duty for reasonable adjustments for disabled people.
• the availability of Access to Work grants.

Interesting legal case

Reasonable adjustments should be considered prior to commencing performance reviews

South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley

An employee with dyspraxia was dismissed on capability grounds by the South Staffordshire & Shropshire Healthcare NHS Foundation Trust. She brought a claim of unfair dismissal before an Employment Tribunal. The Tribunal found that the NHS Trust did not make appropriate reasonable adjustments that allowed her the chance of achieving an acceptable level of performance prior to subjecting her to performance reviews.

1. Section 20, Equality Act 2010
2. Guidance on matters to be taken into account in determining questions relating to the definition of disability
3. Large increase in disability employment discrimination cases, Disability Rights UK
4. Legal cases, Equality and Human Rights Commission
5. Duty to make reasonable adjustments: five tips from case law, Personnel Today
6. South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley, Employment Cases Update

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