As restrictions ease and more people return to work, it is essential that employers continue to ensure the workplace is both safe and free from discrimination for all employees. The Equality Act 2010 (EA 2010) prohibits direct discrimination, indirect discrimination, as well as harassment and victimisation for a number of protected characteristics. Disability is one of these protected characteristics and employees who possess this characteristic have a unique protection under the EA 2010.
Employers are required to make reasonable adjustments to accommodate employees with a disability to attempt to reduce or ideally remove any disadvantage the individual may experience in the workplace.
The duty to make reasonable adjustments is relatively wide and can arise where a disabled person is placed at a substantial disadvantage by:
What is meant by a PCP is construed widely and so will include any formal or informal policies, rules, practices, arrangements, qualifications or one-off decisions. In one specific case, the expectation, rather than the requirement, that an employee would work long hours was considered a PCP. Therefore, employers must ensure they are aware of the potential discrimination aspects of any measures they take which could disadvantage a disabled employee.
Once an employer has identified a situation in which a disabled employee is put at a substantial disadvantage in comparison with those who are not disabled, they must consider what reasonable adjustments could be made. What constitutes a reasonable adjustment will vary from employer to employer and what is appropriate in one case may not be for another. As such, employers must consider each case individually to determine what is appropriate.
The aim of making a reasonable adjustment for a disabled employee is to remove, as far as possible, any substantial disadvantage faced by them that a non-disabled employee does not experience. When making decisions about reasonable adjustments, all relevant circumstances should be considered. An employer can ask themselves a number of questions to help identify the reasonableness of any proposed adjustments.
Employers should also consider their size and the resources available to them as this will also factor into what adjustments might be reasonable for them to make for disabled employees.
Ultimately, the test of reasonableness is an objective one and would be determined by an employment tribunal. The EA 2010 requires an employment tribunal to substitute their own opinion for that of the employer’s when deciding if the employer’s time and resources should have been spent in a particular way to reduce/remove a disadvantage faced by a disabled employee. Employers must therefore be cautious and take reasonable steps in assessing what adjustments might be necessary to help mitigate against any claims.
The appropriate adjustment(s) to make in any one situation will vary depending on the specific circumstances. However, here are a few types of changes that an employer may want to consider when deciding what adjustments could be made.
The pandemic has introduced new models of working in most sectors, and many people have spent months working from home. If disabled employees have been working from home and the employer has found this to be successful, they may wish to consider whether allowing them to continue working from home would be more suitable for their wellbeing. This might be because the physical workplace could put their safety at risk if they have been unable to be vaccinated or they may be nervous about returning, etc.
While the pandemic has brought about a lot of change, it’s also important to consider policy/procedure changes that should be made despite having nothing to do with the pandemic. An example of this might be modifying disciplinary or grievance procedures. An employer may wish to allow an employee with a learning disability to have a friend (but not a colleague) accompany them during meetings to act as a representative. The employer should also be ensuring that any meetings are conducted in a way which do not patronise or disadvantage the employee.
While the workplace may have been suitable for disabled employees in the past, social distancing measures may mean substantial changes to the layout of an employer’s operations. Employers should ensure that disabled employees are not negatively impacted by things such as access to a temporary office, layout changes that make it difficult for them to move around, or access to disabled toilets or lifts.
Employers should also consider positive changes that can be made to allow disabled employees to fulfil their roles. This could be providing information in accessible formats such as Braille or on audio tape. They could also provide a reader/interpreter to an employee who might read mail to a visually impaired employee during certain times of the day.
A good example is where a disabled employee finds it easier to work from home. In this case, employers may need to provide equipment to allow them to do so most effectively. For example, providing a laptop or an adapted keyboard for an employee with arthritis.
Where working from home is not an option, an employer can acquire aids to help the employee complete tasks which might otherwise be more difficult for them to do than a non-disabled employee. Alternatively, it might be more appropriate to arrange for additional training/mentoring for specific tasks.
The adjustments an employer will have to make will depend on the nature of the job and disability of each specific employee. However, what does not change is the requirement that employers make reasonable adjustments for their disabled employees, whatever those adjustments may be. The most effective way of doing this is to actively consider the needs of disabled employees and importantly to communicate and discuss potential adjustments with them, to reduce any disadvantage in the workplace to an absolute minimum. Those with a disability may have been disproportionately impacted by the pandemic and may feel anxious and scared about returning to the office. Every employee is different and will have different needs when returning to the workplace so employers will have a key role to play in ensuring disabled employees are protected.