Disability Discrimination and the duty to make reasonable adjustments

The definition of disability for the purposes of the Equality Act is that a person must suffer from

• a) a physical or mental impairment and
• b) the impairment has a substantial and long term adverse effect on the employee’s ability to carry out day to day activities

Substantial means more than minor and long term means that the effects of the disability are likely to last or have lasted for 12 months or more.

The condition is also assessed without the relevant aids (e.g. hearing aid, spectacles) or medication (e.g. insulin) that an employee might use to mitigate the effects of his/her disability.

An employer's duty to make reasonable adjustments for a disabled employee (or job applicant) can arise in any of the following situations:

Where a provision, criterion or practice (PCP) applied by the employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, the employer must take such steps as it is reasonable to take to avoid the disadvantage (section 20(3) of the Equality Act 2010) – an example might be where the employer requires an employee to work a particular shift pattern (the PCP), which may mean that an employee with diabetes cannot take breaks to accommodate their need to eat regularly.  A reasonable adjustment may be to allow the disabled employee to change their shift pattern or to allow an increased number of breaks to that person.

Where a physical feature of the employer's premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled the employer must take such steps as are reasonable to avoid the disadvantage (section 20(4) of the Equality Act 2010) – for example the necessity to navigate flights of stairs during the course of the working day might mean that an employee with severe arthritis in their knees would be at a substantial disadvantage.  A reasonable adjustment might be to allow the disabled employee to carry out all their work on one floor, if this was feasible.

Where a disabled person would, but for the employer's provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled, the employer must take such steps as are reasonable to provide the auxiliary aid (section 20(5) of the Equality Act 2010). If, for example, a severely dyslexic person was to request speech recognition software to enable them to write reports etc, this may be a reasonable adjustment. Or in the example above, a stair lift were to be installed to assist the disabled employee to negotiate the stairs.

It is important to note the following:

• That the duty to make reasonable adjustments for disabled employees only arises where the employer is aware that the employee is disabled, or is fixed with “constructive knowledge” of their disability.  Constructive knowledge might arise where an employee has been on long term sick leave with an illness that might constitute a disability or where an employee has made the disclosure of an illness that could constitute a disability in, for example, a return to work interview with their manager and employers should be aware of the risk of being fixed with constructive knowledge despite the employee  never having phrased it in these terms.
• An employee is not entitled to all the adjustments that he or she requests. These must be “reasonable” and a tribunal will take into account the financial cost of making the adjustment in light of the size and resources available to the employer and the disruption to its business activities when assessing reasonableness.
• This duty is intended to create a “level playing field” for disabled employees where they are disadvantaged in the work place because of their disability, and is the only situation in law in which it may be necessary to treat some employees “more favourably” than others.
• Long term sickness absence can give rise to various considerations about whether a sickness absence policy ought to be varied/modified to take into account an absent employee’s disability, and/or what other adjustments it would be reasonable to make and at what time.  This is a complex area on which employers are advised to take proper legal advice.

Disability Discrimination and Discrimination arising from disability

The relevant section of the Equality Act that covers discrimination arising from disability is s15:

Under section 15(1) of the EqA 2010, "discrimination arising from disability" occurs where both:

• A treats B unfavourably because of something arising in consequence of B's disability.
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

So, a common example is that an employee is absent from work with a disability related illness/condition, and the employer dismisses the employee (the unfavourable treatment)  because of the absence (the “something arising in consequence” of the employee’s disability).

The employer must have knowledge (or constructive knowledge – see “reasonable adjustments”) of the employee’s disability in order to be liable for this type of discrimination.  If the employer does not know, or could not reasonably know, then it cannot be liable for discrimination.

Unfavourable treatment has the general meaning of “detriment” or “disadvantage” which would apply across other strands of discrimination.  It is likely to be treatment that a reasonable person would generally regard as disadvantageous. Another example given in the Code of practice on Employment produced by the

Equality and Human Rights Commission (EHRC) is that an employee is disciplined for losing her temper at work, but the behaviour is out of character and as a result of her suffering from severe pain due to cancer, of which her employer is aware.  This will be discrimination arising from disability unless the treatment can be objectively justified as a proportionate means of achieving a legitimate aim.

There is no requirement for the employee to show that a comparator was treated better/more favourably in order to make a claim under s15, which, in contrast, must be demonstrated for the employee to succeed with a claim of Direct Discrimination (See Discrimination)

A proportionate means of achieving a legitimate aim?

This can be a defence to both Indirect Discrimination (see Discrimination) and to Discrimination Arising from Disability.

Reasonable business needs and economic efficiency may be legitimate aims, but an employer cannot discriminate solely on the grounds of cost.

In order to be a proportionate means of achieving a legitimate aim, it is necessary to show that the treatment was “appropriate and necessary” and that the same aim could not have been achieved by less discriminatory means. Therefore this defence is unlikely to succeed where, for example, the employer has failed to make reasonable adjustments for the employee’s disability where these were available.

It is vital that employers consider the consequences of the actions they take towards those employees whom they know, or ought reasonably to know, are disabled. It can certainly be more cost-effective and efficient to take legal advice in advance of taking any steps that might, even though not intended as such, be regarded by a tribunal as discriminatory.  We can provide the expertise to guide employers through this complex area of law.

Please contact our employment department to speak Susan Mayall if you require more information about your duties as an employer to make reasonable adjustments.