The secret to making reasonable adjustments in the workplace.

In Employment Law, a business has a legal duty to make “reasonable adjustments” for a disabled member of staff (not just an employee).

But what is a reasonable adjustment?

A reasonable adjustment can be all sorts of things, from installing access ramps, perhaps allowing a disabled member of staff to attend a disciplinary or grievance meeting with a support worker or a member of their family rather than with a colleague or trade union representative or trade union official, agreeing to reallocate certain parts of their role, or other things that remove or lessen the disadvantage that their disability can cause for them.

However, two key elements surrounding the law on making reasonable adjustments are often misunderstood.

Firstly, the adjustment must be reasonable. This depends on the circumstances of each case. To take an extreme example, if an adjustment is likely to bankrupt the business and cost everyone their jobs, then it likely isn’t a reasonable one.

Often, staff members will set out a list of what they want and claim that everything on their list is a reasonable adjustment. Sometimes, the things that they have listed are reasonable adjustments, whilst at other times, they aren’t. Often, it is for someone who is in possession of all the facts, but who is not the disabled person, nor the business to decide what would be a reasonable adjustment, such as an occupational health therapist or, if gets to that stage, an employment judge.

Secondly, the duty to make reasonable adjustments is about ensuring that the disabled person is treated in a manner that is equivalent to people who do not share their disability. In other words, the Equality Act 2010 is aimed at ensuring equality, not giving someone better rights than anyone else. For a disabled person, this means trying to lessen or, if possible, remove the significant disadvantage that the disability is causing to the member of staff.

A relevant real-life example

This was recently explored in the Employment Appeal Tribunal case of Hilaire v Luton Borough Council [2022] EAT 166.

This case involved a disabled employee who was subject to various employment-related processes at the same time as a restructure that could have resulted in his redundancy. All candidates were being asked to reapply for 13 roles and many of them had already been interviewed, as the process had to be completed by a specific date. The disabled employee was off sick from work at the time (which was one of the other employment-related processes that was running alongside the restructure) and, because of the deadline for the roles to be filled (to avoid redundancies, where possible), a deadline was placed on his attending a job interview to apply for one of the 13 roles that were available.

The disabled employee claimed that, because he was on long-term sick leave, he had not attended a job interview in a long time, he had not been given training on how to be interviewed, and he had a number of other employment-related processes happening at the same time, which affected his ability to focus on any one of them, he should simply be “slotted in” to one of the 13 vacant roles, rather than having to attend an interview.

Instead, the employer permitted a brief delay to allow him to recover sufficiently to attend an interview.

The Employment Tribunal had found that the employee had no intention of attending the interview, not because of his disability, but because he felt that the interview process was a veiled attempt to simply dismiss him. The Employment Appeal Tribunal agreed but held that the brief delay to allow him to attend the interview was not a reasonable adjustment as there was no guarantee that the employee would have recovered enough to attend the interview after a brief delay.

Regarding whether slotting the employee into a vacant role could generally be a reasonable adjustment, the Employment Appeal Tribunal held that this could be a correct course of action in certain circumstances, because it would alleviate the disadvantage that was caused to the employee by his disability. However, His Honour Judge Wayne Beard concluded at paragraph 33 of his judgment that it was not a reasonable course of action in this case, as slotting the employee into a vacant role “…was a step which would have impacted on others who had taken part in a process of selection [to avoid redundancy*]”. Therefore, the employee’s interests had to be balanced against the interests of the other employees who were also at risk of redundancy and who were relying on the employee attending an interview before they would know who would receive the 13 roles that were available. 

More broadly, on the subject of reasonable adjustments, His Honour Judge Beard held, in the same paragraph that:-

“Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage”.

Conclusion

In other words, a reasonable adjustment is not intended to give a disabled member of staff better rights than their colleagues. It is intended to give them the benefit of the doubt, so that the impact of their disability is either reduced or removed, putting them in the same position – or broadly the same position – as others who do not share their disability.

If you are struggling with making reasonable adjustments in the workplace and need some advice, please get in touch with a member of our Employment Law Team using the contact form below or call our offices on 0330 088 5792.