The duty to make reasonable adjustments is a key part of The Equality Act 2010.
Disability affects many people, most of whom became disabled during the course of their lives (only 8% of disabled people are born with a disability). The term ‘disabled people’ covers a range of different impairments: although there is no definitive list of disabilities under the Equality Act 2010, employers and employees are often surprised by those included that they might not have been previously aware. This list includes:
- Sensory impairments, such as visual impairments or hearing impairments.
- Impairments with fluctuating or recurring effects such as arthritis, ME, fibromyalgia, depression and epilepsy.
- Progressive, such as motor neurone disease, muscular dystrophy, and forms of dementia.
- Auto-immune conditions such as lupus
- Organ-specific, including respiratory, such as asthma, cardiovascular diseases (stroke and heart disease)
- Developmental, such as Autistic Spectrum Disorders, dyslexia and dyspraxia.
- Learning disabilities.
- Mental health conditions: anxiety, depression, anxiety, phobias, eating disorders, OCD, personality disorders, post-traumatic stress disorder, and some self-harming behaviours.
- Projected by injury to the body, including to the brain.
Under The Equality Act 2010 the definition of a disability is not based on a list, as above, but as:
‘Someone who has a substantial and long term (usually 12 months or more) physical or mental impairment that has a sustainable and long term effect on [their] ability to carry out normal day to day activities’
Our full list of disabilities with information about potential reasonable adjustments are here.
Inclusions and Exclusions
- People who have a disability that fits this term, and is likely to last 12 months of more, regardless of the length of time of the impairment.
- People who have cancer, multiple sclerosis (MS) and HIV – these are included in this definition from the day of diagnosis.
- People who have been disabled in the past due to a condition from which they have recovered or from which they are in remission.
- Severe disfigurements and scars.
- Addiction and dependencies (drugs, alcohol, nicotine).
- Tendency to set fires, steal, exhibitionism, voyeurism.
- Religion: employers are not required to make reasonable adjustments to allow for religious observation, but should make reasonable adjustments for any impairments arising from this (such as physical and mental impairments arising from participation in Ramadan whilst working). Many employers do make adjustments for people who need to pray at work where they can, and at times when it does not compromise the safety duties in their role.
- Disfigurements from piercings or tattoos.
There are exceptions to these exclusions where the exclusion occurs as a result of the impairment arising from the disability.
Duty to Make Reasonable Adjustments
Employers have a duty to make reasonable adjustments to ensure that a disabled person has the same access to everything that is involved in getting and doing a role as a non-disabled person. This means that employers can lawfully treat employees more favourably because of their disability than non- disabled employees if it is to make a reasonable adjustment (such as additional breaks to take medication).
The duty to make reasonable adjustments must be considered if:
- An employer becomes aware of their disability (either because the employee has told the employer, or it can be reasonable that the employer would know).
- A disabled employee or applicant asks for reasonable adjustments.
- A disabled employee is having difficulty with any part of their job.
- An employees sickness record, or return to work, is linked to their disability.
When Reasonable Adjustments are Made
The duty to make reasonable adjustments occurs at every stage of an employees journey, including:
- Recruitment and selection (application, screening, assessment and job offer).
- Preparing to start a role: CRM, compliance, training, allocation and induction.
- Starting and undertaking a role (throughout the duration of employment).
- Feedback, Disciplinary and Dismissal.
- Changing a role or coming back to work under different conditions or working as ad-hoc staff or bank staff.
Requesting a Reasonable Adjustment
Employers must consider and make reasonable adjustments when they know, or can be reasonably expected to know, an employee has an impairment arising from a disability. Disabled people can tell employers in a variety of ways, including:
- At the pre-employment stages: either through direct contact or completing the employer’s forms requesting reasonable adjustments at assessment and interview.
- At the post-employment stages (once a job offer has been made): either through direct contact or through the onboarding processes.
Despite these positive steps, not everybody who requires reasonable adjustments will tell employers immediately, or at all. This can be for a number of reasons:
- They may not, or be reluctant to identify as disabled – but still require reasonable adjustments and be disabled under the Equality Act 2010.
- They may not know they have a disability, just that they have impairments that present substantial barriers in their application or employment.
- They may have coping mechanisms that have worked and do not think they will need reasonable adjustments – yet when they start their employment, these break down and so they then require reasonable adjustments.
- They may fear discrimination if they disclose a disability or request reasonable adjustments (although positive messaging attempts address this, disabled people are more likely to have experienced discrimination in the workplace).
Pre-Employment Health and Disability Questions Ban
The Equality Act 2010 bans any health or disability-related questions in the application or assessment process and employers must not consider these factors when making a decision about employment. Employers can ask if they require any reasonable adjustments at the application and assessment stages, and only use this information to do this.
What are reasonable adjustments?
Reasonable adjustments are intended to remove any substantial barriers for a person applying to or in their role that arises because of a disability. This may include:
- Changing policies or guidance for disabled people where this may be a substantial barrier arising from their disability.
- Changing aspects of the role (in some cases, and only after careful assessment and consideration of alternatives):
- Providing auxiliary aids or specialist equipment.
What is considered ‘reasonable’?
There is no definitive answer to this, and therefore it is recomended employers do not pre-determine a set of adjustments that can be considered reasonable. Most disabled employees will need reasonable adjustments that are simple and can be made with minimum fuss. This requires little assessment and can be implemented at low cost. Reasonable adjustments that would fall into this category include:
- Adjustments that do not require expenditure beyond a ‘nominal amount’.
- Adjustments that do not significantly change the way an employer does something.
- Adjustments that do not significantly change the nature of a role.
- Adjustments that do not increase the risk to the person or other stakeholders.
Employers can ask for evidence of a disability, particularly if they are at the stage of having to consider the reasonableness of a request for reasonable adjustments. Evidence may include:
- A report from the person’s doctor or specailist confirming the nature of the disability and the likely impairments (they may charge for this report).
- An assessment and report from an occupational health professional or service (paid for the employer).
- Depending on the nature of the role, some positions may require a medical assessment by doctors appointed and paid for by the employer. This may provide the evidence needed to determine whether the employee has a disability under the Equality Act 2010.
Ultimately, only an employer can decide whether an adjustment is reasonable or not. They will need to justify their decisions at an Employment Tribunal if a claim is made against the employer, so following a robust process is important.
Financial reasons alone is not necessarily sufficient to refuse a reasonable adjustment. Financial considerations will be looked at against the organisation’s size, the type of the organisation (i.e. are they are a public sector employer), and whether there is funding available (such as Access to Work).