Reasonable adjustments for disabled employees: new ACAS guidance
ACAS has released new guidance on disability discrimination. The new guide focuses in particular on the duty to make ‘reasonable adjustments’.
ACAS has released new guidance on disability discrimination. The new employer guide ‘Disability Discrimination: Key Points for the Workplace’ focuses in particular on the duty to make ‘reasonable adjustments’ for a disabled employee.
For an employer, managing an employee who suffers from ill-health may seem daunting. It may raise questions as to whether the employee’s condition should be regarded as a disability and what workplace changes need to be made for them.
This situation is extremely common, with ACAS receiving nearly 12,000 calls to their helpline regarding disability issues last year. Further, ACAS point out in their new guidance that, in many cases, an employee will develop a disabling condition whilst employed that they did not suffer from when they entered the workforce. Therefore, as well as making adjustments and making work accessible for new recruits, employers also need to be flexible and adaptable regarding the needs of existing staff.
Disability - definition
Briefly, an employee is considered disabled if they have a physical or mental impairment which has a substantial and long term effect on their ability to carry out day to day activities.
This definition is not as clear cut as you would hope. However, it has been clarified that ‘long term’ means that the effect must be present or likely to be present for more than a year. You must, therefore, be mindful that it may be necessary to make reasonable adjustments at the outset if the likelihood is that the effect will be ongoing for a year or more. This ‘substantial adverse effect’ does not need to be present at all times and may be the cumulative outcome of numerous smaller effects.
It is important to note that certain medical conditions which themselves are not disabilities, but can create related impairments for the employee, may require reasonable adjustments to be made. ACAS provides the example of an obese employee. Whilst obesity itself is not a disability the employee may be suffering from physical impairment such as reduced mobility which, of itself, could amount to a disability.
Progressive conditions which currently do not have a substantial adverse effect on day to day activities, but may do in the course of time, also render the employee disabled. It, therefore, is worth considering at an early stage what reasonable adjustments they may need moving forward.
It is also important to remember that the impairment does not have to be physical. Mental impairments also trigger the obligation to make reasonable adjustments. As an employer you need to be particularly aware of your responsibilities in this area as depression, stress and anxiety (whether work-related or not) may amount to a disabilities if there is no long term prognosis for a full recovery.
It can be difficult to determine whether an employee is disabled and careful thought must be given to the impact of the employee’s condition and whether it is possible to make adjustments in any event, even if it is not ‘crystal-clear’ whether an employee’s condition reaches the disability threshold.
Duty to make reasonable adjustments
If an employee has a disability there is a duty on you to make reasonable adjustments to reduce or eliminate any disadvantage the employee suffers when undertaking their job. This also extends to potential employees and, therefore, reasonable adjustments may need to be made in relation to job applications and interview processes.
The duty to make reasonable adjustments will arise if you (as the employer) are aware of the disability (or should reasonably be expected to know that the employee has a disability). Often this will be where the employee has asked for adjustments to be made (or the employee is having difficulties fulfilling any of their duties), but the responsibility is on you to identify and consider any reasonable adjustments which exist whether or not they do so. Adjustments are often important if the employee is absent from work or is unable to return to work for reasons related to their disability.
There is no right for non-disabled employees to claim discrimination on the grounds that they have been treated less favourably than disabled employees.
What are reasonable adjustments?
The key word here is ‘reasonable’. Your size and resources will be taken into account. The adjustments that a large national employer with an abundance of resources will be required to make for a disabled employer may vary from the reasonable adjustments expected from a small employer with fewer resources available. There is also no duty to go further than necessary. So for example, where a headset is sufficient to assist an employee you will not be required to buy a complete new telephone.
When looking at making adjustments you must consider whether there is a need to change how things are done (i.e. reallocating certain tasks or allowing flexible working), whether a physical change to the workplace is required (e.g. wheelchair access) and whether any aids are necessary (e.g. supportive chairs).
Again, going back to 'reasonableness', when considering these adjustments it is important to consider whether:
- They are practical;
- You have the resources to implement these changes;
- The changes will have the desired outcome; and
- They are compatible with any health and safety considerations.
For example adding a lift into an old building may not be practical or viable financially. However relocating the employee to the ground floor may easily resolve the issue.
In the most part, ACAS points out that many adjustments are straight forward and relatively easy to implement. For example an employee who is unable to carry heavy files can easily receive assistance with this. An employee suffering from migraines can sometimes quite simply be offered better lighting.
In order to make sufficient and effective adjustments it is advisable to consult with the affected employee to determine what they can and cannot do and any additional support they require.
Importantly, you are only required to make adjustments which are reasonable. It is unlikely to be a reasonable adjustment to create a new role for a disabled employee, although this will depend on the facts of the case and may be warranted in some circumstances. However you will certainly need to consider what adjustments could be made to the employee’s existing role and working conditions. For example, could an employee’s working hours be flexed or a parking space allocated to assist with mobility?
The duty to make reasonable adjustments extends to the recruitment process. Whilst, in most circumstances, it is not advisable to ask a potential applicant about their health or whether they are disabled, it is permissible to ask whether they require any reasonable adjustments to be made to facilitate their application or to carry out the role. It may be discriminatory to reject an application on the grounds of any adjustments requested. Again, the same test of ‘reasonableness’ applies.
Failure to return to work: When can you dismiss?
The primary aim of any reasonable adjustment is to enable the employee to remain in work. That being said, there are situations where a dismissal may be reasonable. For example, it may be lawful to dismiss an employee if you can show that you have made all reasonable adjustments that might assist and can show that you could not be expected to wait any longer before terminating employment.
Dismissing an employee with a disability is likely to be considered unlawful if it is as a result of a failure to make reasonable adjustments. Crucially, recent case-law has clarified that such adjustments may include extending sickness absence thresholds under an absence management policy, thereby delaying a warning or dismissal. We will consider this issue in detail and analyse recent case law in more detail in January’s HR Focus.
The ACAS guidance reminds us that failure to make required reasonable adjustments is an act of disability discrimination for which there is strict liability. There is no legal justification for failure to make reasonable adjustments. It is worth noting that, unlike other forms of discrimination, the duty to make reasonable adjustments does not extend to non-disabled employees who are associated with a disabled person. Therefore only employees who fit the disability criteria are able to bring a claim.
Whether adjustments are ‘reasonable’ is a case specific question and will depend on the employee’s particular requirements, the practicality of the adjustments, your resources and the health and safety of other employees.
A failure to make reasonable adjustments can result in an Employment Tribunal claim being made. It is therefore advisable to begin making steps as soon as a disability or impairment becomes apparent or is raised with you. An employee has three months from the date of the failure to bring a claim, although the Tribunal has discretion to extend this time limit.