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Reasonable Adjustments

The Equality Act 2010 requires you to make reasonable adjustments where you know, or ought reasonably to know that an employee has a disability.

The underlined terms are crucially important but they are also subjective and their day to day application is left to the judgement of employment tribunals.  So ultimately, the definition of these terms requires a legally qualified interpretation of current and up to date case law.  Nevertheless, what follows is a legally unqualified attempt to remove subjectivity and provide a sharper definition of these terms.

A general point though before we get started.  The terms are so broadly defined by employment tribunals that legal advisers recommend that you treat all employee health conditions as if they are disabilities and:

  • Withdraw conditional employment offers or dismiss your employee on grounds of ill health only as a very last resort.
  • Assess possible adjustments for any employee health condition.

Furthermore, even if you are confident that your employee’s health condition would not be defined as a disability by employment tribunals you might still assess possible adjustments because of your other obligations to take all reasonable steps to:

  • Prevent work from causing or aggravating your employee’s health condition.
  • Protect your employee, colleagues or customers from exposure to health and safety risks whilst working.

1. What is Defined as a Disability?

The Equality Act defines an employee as disabled if they have:

  • A long-term health condition which has a substantial effect upon their ability to perform in their role.
  • A progressive condition.
  • A condition which is automatically defined as a disability by the Act regardless of whether it meets the definition of ‘long-term’ and ‘substantial effect’.

Here is a legally unqualified attempt to define the underlined terms:

Long-term.  The duration of the effect has already or is likely to last longer than 12 months.  The duration can include periods of recurring or fluctuating effects.

  • Recurring is where the symptoms / effects of a health condition are in remission (absent) for long periods of time, possibly for years, but relapse (return periodically).  Examples include; anxiety and / or depression, where years can pass between episodes.  During these intervening periods it may not even be necessary for the condition to be under medical treatment.  The condition would usually need to be medically diagnosed and therefore well understood, and for a second recurring event to have taken place for it to be defined as recurring.
  • Fluctuating is where the symptoms / effects of a health condition are always present but the severity varies over time.  The condition would usually need to be medically diagnosed and therefore well understood for it to be defined as fluctuating.  Examples can include asthma and psoriasis which are medically understood to flare up occasionally, triggered by respiratory infections or allergens.

Substantial effect.  Is defined by employment tribunals as any condition which currently affects your employee’s physical or mental capacity to do their job.  As one lawyer comments: “…tribunal judges have set the bar lower than the word ‘substantial’ might imply“.

It is sufficient for your employee to prove that their capacity to do their job is affected, “It is not necessary for the cause of the disability to be established”1 (i.e., for the cause to be medically diagnosed).  A policy which requires your employee to disclose a medical diagnosis before considering adjustments is not compliant with the Act.

However, if you are confident that your employee has failed to prove that a health condition is substantially affecting their capacity then you could, and probably should, request evidence of a medical diagnosis before finally deciding whether to consider adjustments2.

Progressive condition.  Is any diagnosed condition which currently has an effect but which does not yet meet the definitions of ‘long-term’ and / or ‘substantial’ but is likely to in the future.  Alzheimer’s disease, motor neurone disease, muscular dystrophy and dementia are often quoted examples but there is no defined list, the definition should be based upon the prognosis of an appropriately qualified medical professional.

  • Likely is interpreted by employment tribunals to mean ‘small possibility’. For example; an employee with mild Type 2 diabetes, leading a healthy lifestyle, stable, and feeling no ill-effects was defined by a tribunal judge as disabled because they were presented with medical evidence suggesting a ‘small possibility’ that Type 2 diabetes might progress to Type 1 diabetes at some point in the future3.

Automatically defined health conditions are:

  • Deemed disability (i.e., blind, severely sight impaired, sight impaired or partially sighted).  Defined as disabled from the point of certification by a consultant ophthalmologist.
  • Certain medical conditions (i.e., HIV infection, cancer or multiple sclerosis).  Defined as disabled from the point of diagnosis by a suitably qualified medical professional.
  • Severe disfigurement (e.g., severe facial scarring or a skin disease) not deliberately acquired (e.g., unremoved tattoos and piercings).

The Act also specifically excludes the following conditions from the definition of disability:

  • Seasonal allergic rhinitis (hay fever) is the sole direct cause of the effect.
  • Substance addiction is the sole direct cause of the effect.  For example, an employee’s performance is unsatisfactory due to alcohol dependency.
  • Anti-social behaviour.  ‘A tendency to; set fires; steal; physically or sexually abuse others; exhibitionism; voyeurism’. You must be very careful when managing an employee exhibiting anti-social behaviour caused by an underlying health condition which meets the definition of a disability.  For example; consider an employee with ADHD who struggles to concentrate and has a tendency towards verbal abuse of others.  You can manage the verbal abuse through your normal disciplinary policy without an obligation to consider adjustments for it, but you must consider adjustments to address poor concentration whilst they remain in employment with you.

A condition can be defined as a disability even if the cause is a consequence of a specifically excluded condition.  For example, if the alcohol addiction led to liver disease which met the definitions of ‘long-term’ and ‘substantial effect’, then the liver disease can be defined as a disability.

2. How Are You Expected to Know About a Disability?

 

It is not enough to rely on a GP fit note or your employee telling you about a health condition.  The Act requires that you ‘ought reasonably to know’ that your employee has a disability.  In practice, this also means that:

  • You must explore with your employee whether any observation or concern about performance or behaviours is likely to be something arising in consequence of a disability4.
  • Your organisation must have processes, suitably confidential and subject to your employee’s consent, for bringing together information about their health condition from different sources across your organisation (such as health declaration forms, performance reviews, voluntary disclosures to managers or HR and even applications for Disabled Person’s Tax Credit5) to enable you to fulfil your duties under the Act.  If such information exists then your organisation is deemed to have constructive knowledge of your employee’s condition and will be in breach of the Act if it fails to ensure that you have the information so that you can act upon it.

3. What Adjustments Are Reasonable?

An adjustment is defined as reasonable where it meets the following criteria:

  • It removes or minimises any disadvantage caused to your employee by their disability because it:
    • Is necessary and effective in enabling your disabled employee to remain in, or return to work, with you6.  The opinion of your employee, recommendations made in an occupational health assessment report and evidence about the effectiveness of adjustments already implemented will carry significant weighting in deciding what is necessary and effective.   And / or
    • Prevents your disabled employee from being placed at a disadvantage or treated unfairly compared to non-disabled employees.
  • You are unable to justify that a decision not to implement the adjustment is a “proportionate means of achieving a legitimate aim”.  Understanding what this term means isn’t helped by the double negative (it is a verbatim from the Equality Act) and the legal construct, but here is an attempt to try and interpret it:

Legitimate aim is rarely in dispute at employment tribunals and can include:

  • Protecting the health, safety and welfare of your employee, other employees, customers and the general public.
  • Complying with your legal obligations (e.g., data protection).
  • Ensuring that your organisation delivers an adequate quality of service.
  • Ensuring that your business earns an adequate profit.

Proportionate is usually the matter in dispute and the employment tribunal has to judge whether the damage caused to your organisation’s legitimate aims by implementing the adjustment would have been disproportionate compared to the reduction or removal of disadvantage for your employee.

The circumstances of each employment tribunal case varies depending upon the type of adjustment(s) under consideration, the resources of the employer, the degree of disadvantage to the employee and the conduct and credibility of the employee and employer.  The variability and complexity of circumstances from case to case makes it extremely difficult to reliably calibrate what adjustments are likely to be deemed reasonable.

Some sources suggest that as your organisation increases in size then so should the range of adjustments which become proportionate7.  Here are a couple of useful data points which take us along this line of reasoning:

  • A tribunal concluded that it was disproportionate to expect the Foreign and Colonial Office (with a budget of ~£8bn and ~16,000 staff) to employ a lip reader so that a profoundly deaf employee could be promoted to the position of senior diplomat8. This case might tell us that for a very large organisation, a proportionate adjustment should cost no more than the equivalent cost of another employee.  But the lip reader was only required to enable an existing employee to be promoted, if the lip reader was required to keep the employee in work then it is possible the judge may have ruled it to be a proportionate.
  • A tribunal concluded that it was proportionate for a small business of ~11 employees to pay ~£1,500 (in 2010) for private medical treatment because it might have enabled their disabled employee to remain in work9.

Our study of employment tribunal judgements suggests that what is often judged to be proportionate is more damaging to your legitimate aims than you might expect.  Whether or not this is true, the types of case which require the judgement of employment tribunals are likely to be the rare extremes which test the boundaries of what is proportionate and the following statistics suggest that you will rarely be faced with having to decide on an adjustment which tests your boundaries:

Stats on tribunal judgements 2

  • Millions of adjustments have probably been implemented by UK organisations (10.2 million (31%) of UK employees have a long term health condition).
  • In 2020-2021, 3,120 employment tribunal judgements decided that disability discrimination had occurred.
  • Disability discrimination can occur through; hurt feelings, harassment, victimisation, failure to offer a job, failure to promote, etc.  The number involving a failure to make reasonable adjustments will be a subset of the 3,120.
  • The Disability Rights Commission claim that the average cost of reasonable adjustments is £7510 whilst according to ACAS the average cost is £18411.

But if you are faced with a decision at the boundaries and you decide not to implement an adjustment, you should explore “less discriminatory alternatives” to doing nothing, i.e., alternative adjustments which strike a more proportionate balance.  For example, the legitimate aims of a policy which requires your employees to take 15 minute breaks in designated rest areas away from the workstation, might include; minimise data security risks, keep workstations clean and free from spillages, minimise disruption to neighbouring employees still working.  However, this policy places an employee with limited mobility at a disadvantage because they spend most of the 15 minutes getting to and from the nearest designated rest area.  They request an adjustment to be allowed to take breaks at their workstation but you refuse because of the disproportionate impact upon your legitimate aims.  Your decision to refuse the request seems proportionate but there may still be a proportionate and less discriminatory alternative to doing nothing, such as extending your disabled employee’s rest breaks to 25 minutes.

Click through to the page ‘Using Your Occupational Health Report‘ to see a 5 step process you might follow to ensure that you have gone far enough in making reasonable adjustments and you can prove that your decisions were legitimate and proportionate.

Sources:
  1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf[]
  2. https://assets.publishing.service.gov.uk/media/5bbb4a86ed915d2392981b6d/Mr_A_Hannon_v_Organic_Insurance_Limited_-_2403160_2017_-_Preliminary.pdf[]
  3. Taylor v Ladbrokes Gaming & Betting Ltd UKEAT/0353/15/DA. Employment Cases Update. 16th December 2016[]
  4. Equality Act 2010 Guidance. Guidance on matters to be taken into account in determining questions relating to the definition of disability.  HM Government.  Office for Disability Issues.   2011[]
  5. Department of Work and Pensions v Hall.  UKEAT/0012/05. 2005.[]
  6. Salford NHS Primary Care Trust v Smith UKEAT/0507/10/JOJ[]
  7. Check if your employer is making reasonable efforts to help you return to work.  Citizen’s Advice Website. Last checked 19/05/2022[]
  8. Reasonable adjustment: when is it too expensive? Thompson Reuters PRACTICAL LAW.  27/10/2011[]
  9. Croft Vets Ltd & Ors v Butcher.  Employment Appeal Tribunal. UKEAT/0430/12/LA UKEAT/0562/12. 2013.[]
  10. Top Tips for small employers. A guide to employing disabled people.  Disability Rights Commission.  2015.[]
  11. Disability and employment: heart v head?  ACAS.  9th June 2016.[]