The Equality Act 2010 imposes a duty on employers to make reasonable adjustments for disabled individuals in the workplace. This can be a tricky legal concept, and it is one that we are seeing arise more and more frequently in the partner and senior executive space, partly as a result of the growing focus on mental health and neurodiversity.
Shiv Raja and Maree Cassaidy outline below some of the key points covered in their recent ‘Foxed?’ podcast, providing an introduction to the concept of “reasonable adjustments”, which is available here.
The Equality Act provides protection against discrimination for job applicants, employees, workers, partners and LLP members (among other groups). There are various claims that a disabled individual can make if they feel that they have been discriminated against in the workplace because of their disability. This podcast focuses on just one type of disability claim: a claim relating to the failure to make reasonable adjustments but there are other disability-related claims employers or LLPs should be mindful of.
The Equality Act contains a prescribed definition of disability, which will not always align with pre-conceived understandings of disability. Before making a claim, an individual should consider how they will demonstrate that they fit within that statutory definition of disability, given the burden of proving the disability lies on the individual. The components of the definition of “disability” are as follows:
- The individual must have a physical or mental impairment;
- The impairment must have an adverse effect on the person’s ability to carry out normal day to day activities;
- The adverse effect must be substantial (ie “more than minor or trivial”); and
- The substantial adverse effect must be long-term.
As a general rule, an employer should not turn a blind eye to an employee who may be exhibiting signs of a disability. If it is found that the employer had actual or constructive knowledge of the disability, and failed to make reasonable adjustments, they may find themselves in breach of the Equality Act.
Careful thought should be given by an employer to the approach taken towards a disability-related claim. If the matter ends up in an employment tribunal and an employer succeeds in defending the claim, it could be a pyrrhic victory if the claim has damaged the employer’s reputation in the market, including amongst current and future employees. It is sensible to take legal advice at an early stage.
An employer needs to carefully consider the formal and informal practices in its organisation (known as provisions, criterions and practices (PCP)) and consider whether a disabled person is put at a substantial disadvantage. A PCP may disadvantage a disabled individual even if the adverse impact is inadvertent. If there is a substantial disadvantage, then the employer has a positive duty to make reasonable adjustments to reduce that disadvantage.
To determine what is “reasonable” in the context of reasonable adjustments, there are a number of different factors to consider. The resources available to an employer (including cost), and the degree of assistance that the adjustment would provide to the individual are key aspects to be weighed up, alongside any potential impact on business operations and the nature of the employee’s role. This is a careful balancing exercise. What is considered by an employment tribunal to be a “reasonable” adjustment for one organisation might not be considered reasonable for another. The size and administrative resources of a business are likely to be relevant. The ECHR Code also says that “even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make.” Ultimately, the employment tribunal will decide whether an adjustment is reasonable in all the circumstances.
Mental health in the workplace is of increasing focus. Mental Health First Aid England reported in 2023 that “poor mental health accounts for more than half of all work-related illnesses. Around 51% of long-term sick leave is due to stress, depression, or anxiety.” The ACAS guidance on reasonable adjustments for mental health illustrates to employers how to make reasonable adjustments and support their employees’ mental health at work. It emphasises the importance of the employer and employee working together to explore potential adjustments and acknowledges that mental health is personal to the individual. It also suggests implementing trial periods and follow up meetings so that adjustments can be reviewed and modified accordingly.
Failing to make reasonable adjustments can have significant financial and non-financial consequences for employers, and sometimes also people or third parties acting on behalf of the employer given it is possible to name individual respondents e.g. a line manager, in a discrimination claim. The protection against discrimination is a “day one right”, which means that an individual does not have to work for any qualifying period before they can bring a claim for failure to make reasonable adjustments. However, a claim does need to be brought within three months of the date that the employer should reasonably have been expected to make the adjustment. If a claim is successful, the main remedy will be compensation based on the employee’s financial losses. If there is a dismissal consequent on a failure to make reasonable adjustments, the damages that can be awarded are unlimited, subject to a duty to mitigate and adequate evidence of financial loss suffered. A claimant may also be awarded sums for injury to feelings or personal injury.
This is a tricky area of law which warrants careful attention and training across any organisation. We have significant experience navigating claims in this area on behalf of senior executives and partners, and defending them on behalf of employers. There is significant value in employers having policies and procedures in place and addressing employee concerns swiftly after concerns are raised or as soon as an employer becomes aware that there is a PCP which places a disabled employee or applicant at a substantial disadvantage compared to individuals who are not disabled. Not only will this be beneficial for employee morale and retention, but it can also mitigate the risk that an employer will end up on the wrong end of a costly discrimination claim.
