Reasonable adjustments: our top tips for employers
It is well known that employers are under a positive duty to make reasonable adjustments for disabled staff and job applicants. Essentially, if an employee can show to a Tribunal that there was a reasonable adjustment which ought to have been made, but was not, they will win their claim. The duty can feel like an onerous obligation, fraught with uncertainly. Here, Tiggy shares her top tips to help employers in this tricky area.
Don’t spend too much time pinning down a formal diagnosis: the duty to make reasonable adjustments applies to employees who you know (or ought to know) are disabled within the definition in the Equality Act. Sometimes, it’s difficult for employers to be clear exactly what the condition is and so we often advise employers to be ‘better safe than sorry’ and to work on the basis that their employee is disabled. That way, the employer isn’t caught out by a later diagnosis and, even if the employee is later found not to be disabled, the employer can be reassured that they’ve acted reasonably (and, in doing so, may avoid a constructive or unfair dismissal claim).
Think about what the reasonable adjustment is trying to achieve: employers should implement reasonable adjustments which will help the disabled worker to overcome the disadvantage they face when compared to non-disabled people. The idea is to create a level playing field. So, firstly, you need to identify what the disadvantage is for that disabled member of staff, then think about what steps could be taken to either remove or overcome that disadvantage.
Be open minded about adjustments: the ball is firmly in the employer’s court to consider what adjustments may help – specifically you shouldn’t wait for employees to make a request or only consider the adjustments that they’ve thought of. In practice, it’s a good idea to involve the employee in your considerations – encourage them to share their ideas with you, think about it yourself, but also consider whether you would benefit from some expert help. You’re not expected to have all the answers yourself so you may want to take advice from an Occupational Health adviser, the employee’s GP or specialist physician or a medical charity in the relevant sector.
Keep an eye on what’s reasonable: if an adjustment could be made but it wouldn’t actually have the effect of overcoming the disadvantage for that employee, then you may not be expected to implement it. The Equality & Human Rights Commission’s (EHRC’s) code is helpful and suggests that employers consider the effectiveness, practicality, cost, disruption, the employer’s resources, the assistance available to the employer and the type and size of employer when deciding whether an adjustment is reasonable. Effectiveness will be the most important factor, but employers are expected to implement changes even if an effective improvement is not guaranteed – the chance that the adjustment would remove an employee’s disadvantage is enough. Consider a trial period if you’re not sure that the adjustment will achieve what is needed.
Don’t get fixated on cost: employers are required to implement adjustments even if there’s a cost of doing so. That said, many adjustments are minor and can be implemented with little cost. You should be encouraged to think about how the cost of adjustments may be favourable compared to the cost of recruiting and training a new employee.
It’s not just about equipment: the duty to make reasonable adjustments does apply to physical workplace features and the provision of workplace aids, but also applies to rules and practices which the employer operates. This means that you may need to adjust your sickness absence procedures, your absence management triggers and/or your disciplinary and grievance procedures. There’s no general expectation that employers will extend periods of company sick pay for disabled staff, unless the absence is caused by the employer’s failure to make reasonable adjustments.
Keep the adjustments under review: some adjustments may change over time, perhaps because an employee’s condition has either improved or deteriorated or if technological or other changes mean that different adjustments are required. It’s a good idea to schedule routine catch ups, even if it’s just annually, to check that the adjustments are still appropriate.
Take a note, just in case: it’s a sensible precaution to make a record of your meetings and discussions in case evidence of your considerations is needed later. It also indicates to the staff member that you’re taking the issue seriously.
If you have any questions regarding this topic or would like more information, please do contact Tiggy Clifford, Partner on 01904 437681 or at email@example.com.