Reasonable Adjustments

 Ask a Reasonable Adjustments Expert
  • Many employment barristers deal with reasonable adjustments cases – why ask Spencer?
  • Spencer has been singled out in legal directories as having knowledge of disability discrimination that is “second to none”
  • He deals with reasonable adjustments cases on a weekly basis
  • He has an academic interest in disability law as well as practical experience of lengthy and complex cases
  • He can help clarify your claim or defence to give you the maximum chance of winning

What is A Reasonable Adjustment?
  • Tribunals are entitled to make their own assessment of what is reasonable adjustment
  • Given that reasonable minds can differ how do you know whether a tribunal will agree with you?
  • How can you maximise your chances of winning?
  • Although there may well be no right answer Spencer can help you maximise your chances of getting it right
  • Spencer can
    • advise you on what adjustments are required?
    • advise you on your prospects of succeeding in a claim
    • draft a claim form (ET1)
    • draft a defence (ET3)
    • give you feedback on your witness statements.

What will it Cost to Instruct Spencer?
  • Spencer bases his charges on an hourly rate
  • This is normally less than a solicitor / lawyer in an equivalent place in the market
  • He charges a fixed fee for hearings
  • He charges a fixed fee for drafting court documents
  • He can agree a fixed fee for most other work

Please do feel free to call Spencer to for an informal and free of charge discussion about your requirements.

 

Overview of the Duty to Make Reasonable Adjustments

The duty to make reasonable adjustments aims to remove barriers that prevent disabled workers from integrating fully into the workplace.

Employers are required to make reasonable adjustments to their working arrangements or premises where a disabled person is disadvantaged by them.

The duty requires employers to do things for disabled employees that they would not have to do for non-disabled employees.

Roughly speaking there are three steps to a consideration of whether an employer has failed to make a reasonable adjustment:

  1. Did the duty to make adjustments arise?
  2. What adjustments were reasonable?
  3. What did the employer know?

 First Step – Did the Duty to Make Adjustments Arise?

To find out whether the duty to make adjustments arises:

  • Identify the relevant Provision Criterion or Practice that the employer has applied
  • Identify the disadvantage
  • Identify the nature & extent of disadvantage

Identify the Provision Criterion or Practice:  The employee must provide some evidence that the employer applied a provision, criterion or practice.  The claimant must have some idea of what this is and must be able to articulate it clearly.

Identify the Disadvantage:  Tribunals decide whether an employer’s PCP has disadvantaged an employee by undertaking a comparison exercise.  This exercise compares the claimant’s position with that of a non-disabled person who is known as the comparator.

The comparison exercise for reasonable adjustments cases is different from the comparison exercises in other discrimination cases. The leading disability discrimination case dealing with the comparator is the case of Smith v Churchill Stairlifts [2006] ICR 524.    This has been confirmed by the case of Griffiths v Secretary of State for Work and Pensions.  The comparison exercise in Smith v Churchill Stairlifts asks whether the alleged disadvantage is substantial in comparison with persons, firstly who are not disabled, and secondly who are not disadvantaged by the PCP.

Example: take an employer who has a rule that applicants who are unable to type at 55 words a minute or faster will not be offered an interview. The claimant in our example is disabled by arthritis which means that he cannot type at more than 40 words a minute. He is refused an interview. Four non-disabled people however were able to fulfil the criteria and were offered interviews. The PCP is the employer’s criterion that the candidate must be able to type at 55 words per minute in order to be offered an interview. The comparators in this example are the 4 applicants who were not disabled and who were not disadvantaged by the PCP because they were invited to an interview.

Identify the Nature and the Extent of the Disadvantage:  Identifying the nature and extent of the disadvantage is reasonably simple once the comparator is identified.  An employer is required to make an adjustment to avoid a disadvantage if the disadvantage is substantial.   “Substantial” in this context means “more than minor or trivial”.

Returning to my example above, the disadvantage in that example is that the claimant was not invited for an interview.  This is disadvantage is clearly more than minor or trivial because, without an interview, the disabled person cannot succeed in obtaining employment.

If a substantial disadvantage arises the employer is under a duty to take steps to avoid it.


Second Step – When is an Adjustment Reasonable?
  • What adjustments should the employer make?
  • How many adjustments should they make?
  • How much money is it reasonable to spend?
  • Does the employer have to consult medical evidence?
  • How will a tribunal determine whether an adjustment was reasonable?

The answer to these questions is not always straight forward.

The test that tribunals apply when considering whether an employer has made a reasonable adjustment is an objective one.  This means that if the tribunal considers that there was an adjustment that was not made and which was reasonable then the employer will have breached the duty.  The objective nature of the duty to make adjustments makes it a very onerous duty and also makes it harder for employer to predict whether they have complied with it.

A good place to start a consideration of the reasonableness or otherwise of an adjustment is by looing at the old Disability Discrimination Act 1995, s 18B(1).  That section listed the following relevant factors:

  • the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
  • the extent to which it is practicable for him to take the step;
  • the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
  • the extent of his financial and other resources;
  • the availability to him of financial or other assistance with respect to taking the step;
  • the nature of his activities and the size of his undertaking;
  • where the step would be taken in relation to a private household, the extent to which taking it would—
    i) disrupt that household; or
    ii)    disturb any person residing there.

Of course this is not an exhaustive list and other factors may well be relevant. As we have already seen the adjustment must be effective in order to be considered reasonable and it is clearly unreasonable to expect an employer to make an adjustment that does nothing to alleviate the disadvantage suffered by the disabled person. Other factors such as the expense of the adjustment are also relevant and the more expensive the adjustment the more unlikely it is that the tribunal will consider it to be reasonable.


Third Step – Did the Employer Know?

Roughly speaking employers are not under a duty to make adjustments if they do not know (and could not reasonably be expected to know) that:

  • a person has a disability; and
  • the provision, criterion or practice (PCP) that they are applying is placing that person at a substantial disadvantage.

Reasonable Adjustments Cases

A list of reasonable adjustments is contained in Spencer’s disability law database here.

How to appoint Spencer

Please call Spencer on 07717 721204 to discuss your needs.
Alternatively, please email keen@oldsquare.co.uk or use our contact form to get in touch.