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Our latest podcast by Rebecca Cairney and Luke Millington looks at the different types of discrimination under the Equality Act and specifically the duty to make reasonable adjustments and the factors to consider before and during employment to ensure that reasonable adjustments are made.
Transcript
Rebecca Cairney: Hello, everybody, and welcome to the next edition of the employment insights podcast. My name is Rebecca Cairney, and I'm a Partner and team manager for the employment, pensions and immigration team, based in Liverpool.
Rebecca: I'm joined today by one of my colleagues, Luke Millington, who is an Associate based in the Liverpool employment team. Hi, Luke, and thanks so much for joining us today.
Luke Millington: Hi, Rebecca. Great to be here, and hello to listeners as well. Great to make my podcast debut.
Rebecca: So today, we're going to discuss the different types of discrimination under the Equality Act and, specifically, the duty to make reasonable adjustments, so the factors to consider before and during employment to ensure that reasonable adjustments are made. So, I suppose without further ado then, Luke, please could you just highlight the different types of discrimination that the Equality Act prohibits?
Luke: Yeah. Sure. So, there's lots of different types of discrimination that are prohibited. So there's direct discrimination, indirect discrimination, harassment, and victimisation.
Luke: So those four things, they cover any type of protected characteristics, be it your disability, sex, age, whatever it may be. Those are the four types that can apply across the board but there are additional protections for people with disabilities as well.
Luke: And there's broadly three categories of extra protection that people with disabilities have. The first one is certain restrictions on the questions that employers can ask in pre-employment health checks.
Luke: Second one is discrimination arising from disability.
Luke: And then the third one, which we're going to be focusing on in detail today, is the duty to make reasonable adjustments on employers.
Rebecca: Yeah. Absolutely. We are going to be focusing today on the duty to make reasonable adjustments. So, is there any more detail that you can provide initially regarding the duty on employers to make reasonable adjustments for disabled employees?
Luke: Yeah. Sure. So, there's three main elements to when the duty can arise. So, it arises in response to three things in particular.
Luke: So, the first one is where an employer has a provision criteria in all practice, which it applies to its work its workforce. So, we call that PCP for short.
Luke: The second one is where there's a physical feature of an employer's premises as well. So, for example, steps to access the building. So, where it has something like that, or it can be the location of a toilet facility, just any physical feature about the building.
Luke: And then the third one is the non-provision of an of an auxiliary aid or service. So, for example, employers may not routinely provide employees with a British sign language interpreter because not every employee needs that.
Luke: Now, where any of those three things puts an employee with a disability at a substantial disadvantage in comparison with a non-disabled employee, then the employer is then under a duty to make reasonable adjustments.
Luke: So, that's when the duty kicks in and when it's triggered. And then the duty is to make whatever adjustments are reasonable to actually alleviate the disadvantage that the employee is put to.
Luke: So, say, for example, the physical feature example. If there's steps to get into a building, then clearly, that is going to put a wheelchair user at a disadvantage. So therefore, a reasonable adjustment could be to install a ramp, install a lift, whatever it may be, to actually alleviate that disadvantage.
Luke: And the same is true for PCPs that employers may have. Same goes for where employees don't routinely provide auxiliary aids to employees as well.
Luke: So, the key points there are that substantial disadvantage. That's the key thing you're looking for, and that is a really low threshold. So, substantial in my dictionary doesn't reflect what it means in the legal dictionary. So, the legal purpose is substantial. It just means more than minor or trivial.
Luke: So, we have anything that puts an employee to a disadvantage that is more than minor or trivial, then potentially, you're going to have the duty to make reasonable adjustments triggered.
Luke: And equally, provision criteria or practice PCP, that is interpreted really widely as well. So, effectively anything can be a PCP as long as it's applied generally to the workforce at large. It does, however, have to be job related, so that's one restriction on it.
Luke: And the combination between those things, the interplay between the means that the trigger point for having to make reasonable adjustments, it's a lot lower than people sometimes appreciate and it can apply in effectively any scenario that you could think of.
Luke: So, it's really important for employers to be mindful of this duty, I think. It’s something that is often overlooked.
Rebecca: Yeah. Absolutely. That makes perfect sense. Thank you. So, what sort of factors should employers be considering when they're determining what is a reasonable adjustment?
Luke: So, whether it's reasonable or not is the million-dollar question, isn't it? And there's no one-size-fits-all answer for this, unfortunately, for the listeners. It really does depend on the circumstances.
Luke: I know that's a very lawyery answer, but it is unfortunately a reflection of legal position. So, some factors that are considered are going to be:
- The effectiveness of the adjustment. So, will the adjustment actually work in practice if you make it? So, if it isn't going to work in practice, then you can quite rightly say to a tribunal ‘well, it wasn't reasonable for us to make that adjustment because we looked into it and identified that, actually, it's not going to work for the employee, it’s not going to alleviate the disadvantage.’
- The practical ability of the adjustment. So, based on, your premises, your work and practices, whatever it may be in the circumstances. How easy is it going to be to introduce the adjustment? Is the employee just asking for quite a small, minor adjustment in the circumstances? Or are they asking for something that actually requires you to totally redevise your shift patterns or working hours?
Luke: If it's working hours that are causing a disadvantage, or they are asking for adjustments to your premises that are going to cost an absolute fortune or just aren't workable, etc.. So, issues of practicability are important as well.
Luke: I mentioned cost in passing there, but that's another factor that can be taken into account when we're considering reasonableness. And how it's taken into account is that the financial and other resources of the employer can be considered, as can the type and size of the employer as well.
Luke: So, for example, a sole trader isn't going to be held to the same standards as a large national business that has a dedicated HR department, lots of resources that the sole trader doesn't have. So, the context is really important there.
Luke: The key thing as well is, we may be able to advise you on what we think is reasonable. You may be able to make that assessment yourself and think, well, actually, I don't think this is reasonable in the circumstances. But the ultimate decision on that falls to the tribunal and an employment judge, and that can differ from employer to employer. It's going to be judged on a case by case basis.
Rebecca: Yeah, that makes sense. Thank you, Luke. And so, we spoke just then about the reasonable adjustments that employees should make once an employee becomes an employee. But are there any key factors that need to be considered when ensuring reasonable adjustments in, for example, an employment process?
Luke: Yeah. So what? Like a recruiting process?
Rebecca: Yeah.
Luke: So, the first point to make here is knowledge is quite important. So, I say that on two fronts.
Luke: So, that means knowledge of the employee or the applicant's disability in the first place and then knowledge of the substantial disadvantage that they say they've been put to.
Luke: Now, you can't remain wilfully blind to that issue. You can't just close your eyes to the reality. But in terms of the recruitment process, I think it's a case of striking a balance between actively, objectively assessing the candidate. And then, to ensure you have a fair process at large, straight for other candidates who maybe don't experience disabilities, but then actually making adjustments where necessary to support the employee that maybe does experience disabilities. And that can be quite a difficult balance to strike. I'm not going to lie. There's no kind of easy answers there, and it's made additionally difficult, I think, by some of the provisions in the Equality Act.
Luke: So, for example, it prohibits employers from asking potential recruits about their health in the first place. So, you can't ask an applicant whether they've got any disabilities – that's prohibited. But what you can do is you can ask questions about adjustments that may be necessary for them to the recruitment process and then see what their what their feedback is on that.
Luke: Depending on what the feedback is, you go away, think about it. Can we accommodate that? Can we not? And then in the back of your mind, you’ve got to be mindful of if we accommodate this, does it compromise the integrity of our recruitment process?
Luke: And when you're advertising for the job as well, it's really important to differentiate between what is considered a main duty or, essential criteria of the role. And then what is just an occasional or ideal aspect of the role? So, desirable criteria rather than essential criteria.
Luke: And you need to review that for every role because, depending on how you categorise what's desirable and what's essential, that could potentially put off candidates with a disability from applying, and it may put them at a substantial disadvantage throughout the recruitment process as well.
Rebecca: Yeah, that makes sense. Have you got any examples as to what kind of adjustments employers should be thinking about? So, for example, modifying procedures, etc., for those types of recruitment processes where they might have disabled applicants?
Luke: Yeah. I've got some, but, again, the caveat is it will depend on the particular facts and circumstances of any job application process you're going through, and then what kind of difficulties the applicant experiences as well.
Luke: But some that have been considered reasonable would be modifying your interview procedures. So, for example, giving a candidate, more time to think about their answer if they've got certain medical conditions that can make it difficult for them to and provide their answers in the same way as a non-disabled candidate would.
Luke: Equally, the provision of a reader or interpreter for somebody who, for example, is deaf or maybe struggles with reading words in the same way as somebody else would.
Luke: Equally, if somebody's blind, maybe providing them with any written exercises in braille format. Clearly, that's going to be a reasonable adjustment as well.
Luke: And, somebody may need a support worker as well or an assistant for the recruitment process to support them and give them back their answers, say, employees that do experience, really severe learning difficulties. They might actually need somebody to, if you asked them the question, the two of them consider it together, and then the assistant then supports the employee in feeding back their answer to the interviewers.
Luke: So, it's about being flexible and thinking about what can we accommodate, and what's the interplay between that and then the essential criteria for the role as well.
Luke: What we always say as well is that your paper trail is really important. So, maintain the appropriate paperwork, any evidence that you've got of the scoring that was used in the assessments or in the interview and any evidence of any adjustments that you've made to the interview process because, you never know, that could be quite important because the key thing to bear in mind with anything under the Equality Act is somebody doesn't have to be an employee to actually bring a claim against you. It applies to a very broad category of people, this duty to make reasonable adjustments and that it does encompass job applicants as well.
Rebecca: Yeah, absolutely. I think that's a really important point to make. So, moving away from the recruitment process then and going back to current employees, we did touch on it a little bit before, but what things should employers be considering?
Rebecca: So, at the outset, we spoke about, how the duty to make reasonable adjustments arises and what things employers need to be thinking about, but what should you be considering when you're trying to put this into practice?
Luke: There's a lot of considerations there, isn't there? The key thing for me is maintaining an open mind throughout the employment relationship, certainly at the outset and as it goes on because people's health conditions can change throughout the employment lifecycle, they're potentially going to be with you for years and years.
Luke: If they've got a condition at the outset of their employment and it's manageable at that point in time, it doesn’t mean that's always going to be the case.
Luke: Equally, people are diagnosed with conditions as time goes on. So, I think, a key thing is that once the interview is done, the employee then does a pre-employment health questionnaire and then then reveals any medical conditions they have and, based on that, could consider whether an Occupational Health referral is necessary, consider as well whether a reasonable adjustments meeting is necessary with the employee as well, sit them down, talk about, the responses, any feedback from Occupational Health, and explore kind of what adjustments may be needed.
Luke: And then have a paper trail of that documented as well. And I think the tricky aspect is that all of this, it requires the cooperation of, various different individuals. So, you need the manager, HR and, crucially, the actual employee themselves needs to cooperate as well.
Luke: So, clearly, if they don't cooperate, it's going to be very difficult to actually come up with a solution that works for both parties.
Luke: I think the most important thing linking in to all this is just that dialogue within the business. It’s a culture, of openness between the employee, the manager and HR, because you need the employee to feel comfortable sharing details of their medical condition with you. They need to feel comfortable as well, discussing what adjustments they might need as well.
Luke: The adjustments can be really wide ranging. They can encompass any aspect of the role. So, any adjustment could be reasonable depending on the particular circumstances of any given case. So it could be, for example, adjustments to working hours that the employee might need.
Luke: The duties themselves might need to be adjusted as well. So, for example, if an employee's disability affects their physical ability then, for example, could an adjustment be made to the role to avoid heavy lifting for that employee. Equally, if the employee has a particular learning difficulty or perhaps a neurodiversity that affects how they process information and act on instructions, then could we maybe make an adjustment to how we deliver information and instructions to that employee so that they can not be put at a disadvantage.
Luke: Equally, place of work can sometimes be something that can be adjusted in location as well. The increase in popularity of work from home has brought that into focus, hasn't it? Lots of employees now are kind of coming to the table with medical conditions that they're saying are impacted by the frequency by which they're required to visit the office. So, are there adjustments there that can be made?
Luke: So, the theme we're kind of picking up from this is, the adjustments can basically apply to anything. What we need to bear in mind is, just keep an open mind about these things. Don't be too restrictive.
Luke: We mentioned earlier factors that need to be considered when we’re deciding whether an adjustment is reasonable or not. For example, how effective it might be, what the resources of the employer are.
Luke: Now a key thing to bear in mind is that, if the duty to make reasonable adjustments is invoked if it applies, then that’s a duty on the employer to make the adjustments and to fund the cost of the adjustments. So, what you can't do is sit down with an employee and, say the employee's blind, say they need a braille keyboard to do their job and let's say for arguments sake, braille keyboards are quite expensive. The employer doesn't want to fund up all the cost of that themselves. They can't sit down with that employee and say, look, I know you're blind. I know you need this keyboard. We agree you need this adjustment to do your job and it's reasonable. But we want to go halves on the cost of it because it's quite expensive.
Luke: That just isn't going to fly with the tribunal, and it's not lawful to do that. The onus is on the employer if that duty applies to fund the cost of the adjustment themselves and just swallow that cost and it's unfortunate for the employer that it has to do that, but, ultimately, this is about trying to equalize any imbalances and disadvantages that are created in the workplace by the employer's normal practices, which, I guess, is fair enough.
Luke: Now Occupational Health guidance is really key in all of this. So clearly, most employers aren't going to be medical experts, so it can be difficult for us to actually figure out what the employee needs without that input from Occupational Health. But, the key thing there is we can't just totally abdicate responsibility to Occupational Health and say look, here's our employee, what do we need to do with them? Are they disabled? What adjustments do they need?
Luke: Because, coming back to the knowledge point, it's not always possible for an employer to be totally reliant on the feedback from OH when deciding is this employee likely to be disabled? Are they put at a substantial disadvantage? You can't just turn around to a tribunal and say, ‘well, we had an Occupational Health report that says this employee wasn't disabled’ when, actually, you may have day-to-day evidence that indicates that, this this employee is actually really struggling in the workplace, and it seems to be linked to a medical condition.
Luke: If that's the reality, then the tribunal is likely going to turn around and say look, you should really have known this employee was disabled. You knew about the disadvantage they were put to as well.
Luke: With the adjustments, it's sometimes difficult for Occupational Health to give you really specific indications of what that employee needs. It tends to be more generalised feedback on, say, a reduced hours pattern, a phased return, etc., etc., or advice on certain equipment or modifications that may need to be made.
Luke: So, it's important when you do get that Occupational Health report to actually sit down with the employee to discuss it and, ideally, come up with a solution that works for the business and for the employee as well.
Luke: I'd always recommend that employers are proactive when it comes to making the adjustments, it's a case of fully investigating the options that are available and, if there are any that you don't think are going to work, clearly document the reasons for that decision and why you're pushing back and saying, actually, no, we looked into it, we can't make that adjustment.
Luke: You're going to stand a much better chance in tribunal of persuading a judge that maybe it wasn't reasonable to make that adjustment in the circumstances if you've actually looked into it and you've got a paper trail showing that you've done that.
Luke: Equally, you need to review the adjustments that have been put in place on a regular basis. As we said at the outset, medical conditions, they can change over time, and employees' needs can change over time. So, adjustments that work when you first introduce them on day one, they're not necessarily going to still work, six months, 12 months down the line for that employee.
Luke: So just remain alive to that possibility and alive to the fact that employees may need more adjustments as time goes on and, that can cut the other way as well. Because, if an employee is just experiencing a temporary flare up in a long-term condition they have, it may be the case that, over time, maybe they're on new medication that allows things to settle down a bit. It might be they don't need the adjustment on a long-term basis. So, again, that indicates why it's worth keeping it under review too.
Luke: It's not just a case of giving the employees these adjustments when they start with you, and then just saying ‘go away, get on with your job now.’ Or equally, you can't just do it when you become aware of the employee's disability as well and then send them away and ask them to get on with their job.
Luke: I’d always recommend that managers review the effectiveness of the adjustments on a periodic basis with the employee, get their perspective. Is this still working for you? Is there anything else you feel you may need? And then if they're asking for further minor things, it may be something that you can just agree without any issue.
Luke: If it's more major things, then you can look at sending them away again for a further Occupational Health review to get input from our OH on ‘OK, they've asked for this adjustment. Do you feel it's necessary? Is it going to work? Is the condition such that they need this, etc.?’ And then, you can make a decision then in light of that as well.
Rebecca: Yeah. I think that's all really, really helpful. There's a lot of practical tips in there, Luke. So, thank you for going through that. One of the areas that we quite often see cropping up from clients is where there's formal processes at play.
Rebecca: So, for example, a disciplinary procedure and where employees who might be involved in that procedure are asking for adjustments to be made for them. Have you got any hints and tips or examples of adjustments that might be reasonable, why somebody might need them, what the duty is on the employer in that type of scenario?
Luke: Yeah. Absolutely. I'd echo your experience there. I see this quite a lot dealing with employers. A lot of the time it's linked to mental health conditions that the employee may have because, clearly, nobody wants to go through a disciplinary procedure, and it tends to be quite stressful for the employee involved and, that can aggravate many underlying conditions that an employee has, be it, mental or physical impairments.
Luke: So, people who experience a neurodiversity or learning difficulties, sometimes it may be difficult for them to participate in a disciplinary hearing in this additional format as well. So, it tends to be those scenarios that I see most often come up for clients in this situation where an employee is asking for adjustments.
Luke: So, some examples of adjustments that are typically asked for can be the right to be accompanied. So, as we know, it's normally just a trade union representative or a colleague. For whatever reason, the employee may not feel comfortable having an individual of that description come into the meeting. They may want a friend or a relative to come with them instead. So, is that something that could be accommodated in the circumstances?
Luke: Other ones are the actual hearing format itself. So general preference is to have the hearing in person. Could we hold it by an alternative format if that's going to be a difficulty for the employee because of a medical condition they're experiencing?
Luke: So, for example, a neutral venue. So sometimes people don't want to actually come into the office and have it there. Can we go somewhere else to do it in person? Microsoft Teams and Zoom, clearly, most employers have access to those now. Could we do it by telephone as well, or, exceptionally, would a written process work instead, where we send written questions to the employee, they come back to us with written answers. That one is quite exceptional.
Luke: Another one could be, allowing a delay to the hearing. Often it’s a case of the employee may be signed off sick with stress or anxiety, depression, whatever it might be during the hearing process. And they may say look, I'm not fit to come to a hearing right now. Can we just delay it until the end of my current fit note, etc.?
Luke: And, that process can become difficult because it elongates the process for everybody, doesn't it? And it’s a vicious circle in a way, in that the employee's current condition is influenced by the ongoing process, but then if that process never ends, then it gets to the point where it's unlikely the employee's ever going to get better.
Luke: But that's where, Occupational Health comes in as well, and they're important throughout all these adjustments too in that you can look at sending the employee to Occupational Health and say look, we've delayed it a little bit, but things really are dragging on now. We know the employee’s signed off sick from their day-to-day role, but can you give us some guidance on whether they are fit to come to work and, if not, are they fit to attend management meetings or a disciplinary hearing?
Luke: And then Occupational Health, usually, will give you some guidance on that. You can ask them too, if they're not fit to come to a meeting in the traditional format, are there any adjustments we could make to the format of the meeting?
Luke: So, with Occupational Health throughout all of this, not just the disciplinary areas, but any referrals to Occupational Health, the quality of the report you get back is often based on the quality of what you put in when you're actually doing the referral. So, if you ask the right questions, you're going to get guidance on the right sort of topics.
Luke: Now, another example just building on the delay is if somebody has severe learning difficulties, and it's been held in the past to be a reasonable adjustment to have allowed that person to effectively have an advocate come to the hearing with them and to advocate on their behalf because, for whatever reason, that employee's medical conditions meant that they weren't able to do that themselves. So, things like the identity of who accompanies the employee, the format of the hearing and delaying it a little bit.
Luke: I think where I always land with these is often the quite kind of simple and minor adjustments that we can make as an employer. My general mantra tends to be that employers really should pick their battles on things like this because, more often than not, it tends to be best to just simply agree to the requested adjustment rather than getting very entrenched in your position and say, ‘no, no, no. This has to be done as per our disciplinary policy.’
Luke: And I think just being flexible on that not only doesn't mean you're actually supporting the employee, but it also removes a potential barrier or a potential delay in the disciplinary process because you might have a bit of an impasse where the employee is asking for these adjustments. You're saying no. And, actually, that loggerhead situation is what's preventing things from progressing.
Luke: So, often making the adjustments, I find it's in everyone's interest really. So, it supports the employee and it allows the employer to crack on, get the process done and dusted.
Luke: Some employers I speak to can be quite concerned in this scenario about setting what they see as an unhelpful precedent.
Luke: So, if they allow Joe Blogg's wife to accompany him to a disciplinary hearing, they might be concerned that, all of a sudden, everyone's going to turn around and start asking for friends and family members to come into a disciplinary hearing.
Luke: But you have to be able to take each request for adjustments on its own merits. So the only precedent you'd be setting in this example would be that if you have a medical condition, Joe Bloggs, and you request an adjustment to our process, we'll go away and we'll consider that, and then we'll do what has to be done to remove any disadvantage that you may be put to by our process. I don't think that's an unhelpful precedent at all to set. And, really it’s one that needs to be set in in order for employers to stay on the right side of the law.
Luke: If you end up with future examples, of course, where someone turns around in six months’ time and says, ‘well, when Joe Bloggs went through a disciplinary process, he was allowed to bring his wife along with him,’ it doesn't mean you have to make that same adjustment for that subsequent person. It's only if that subsequent person has a medical condition that means that they also need that adjustment.
Luke: So, it's really important to just judge each case on its merits and don't get too hung up on this idea of setting unhelpful precedents.
Luke: And with a disciplinary scenario as well and any scenario that could lead to a dismissal, it's really important as well to be mindful of the unfair dismissal risks are not just focusing on the reasonable adjustments angle. So, if you if you end up dismissing an employee that's asked you for reasonable adjustments to, say, a disciplinary process and you've refused to make those adjustments, then there’s a risk that, not only could you be on the hook for a failure to make reasonable adjustments claim, but your failure to make those adjustments could actually damage the fairness of the disciplinary process as well, which then may not play too well if the employee brings an unfair dismissal claim.
Luke: So, this is often a real focus area for adjustments. But as with all these things and any adjustments, I think it's just a case of trying to be, open minded about what you can do support the employee and don't just kind of slavishly adhere to your policy or kind of develop an attitude of, ‘well, we've always done it this way. Everyone has to come in in person, so that's just the way it's going to be.’ That's quite unhelpful if we do develop that attitude.
Rebecca: Yeah, absolutely. That that makes perfect sense. Thank you, Luke.
Rebecca: Well, thank you so much for the helpful update, and thank you everybody, for taking the time to listen to this podcast.
Rebecca: If you want to keep an ear out for other important employment law updates, you can subscribe to our podcast channel, employment law insights. But for now, if you do need any assistance with anything employment or HR related, then please contact me by email at rebecca.cairney@weightmans.com or Luke on luke.milington@weightmans.com.
Rebecca: Thanks very much again, Luke, for providing us with those updates, and thanks again everybody for listening.
