Are reasonable adjustments still required if a disabled employee hasn't asked for them?
The recent case of The Home Office (UK Visas & Immigration) v Kuranchie (2017) concerned whether the Home Office had failed to make reasonable adjustments in relation to a disabled employee.
Ms Kuranchie suffered from dyspraxia and dyslexia, and found that due to her disabilities, it took longer for her to complete her work. She made a flexible working request to work compressed hours i.e. a 36 hour week spread over four days instead of five days.
Ms Kuranchie’s request for flexible working was approved, however she brought claims against the Home Office in the Employment Tribunal, including a claim for a failure to make reasonable adjustments on the basis that they should have also reduced her workload to reduce the substantial disadvantage she suffered compared to her non-disabled colleagues.
Reasonable adjustments – the law
Employers have a duty, under the Equality Act 2010, to make reasonable adjustments for disabled employees where they are placed at a substantial disadvantage by:
- a 'provision, criterion or practice' of the employer (which could include formal or informal policies, rules, practices, arrangements or qualifications);
- a physical feature of the employer’s premises (such as stairs, toilet facilities, gates or lifts); or
- the employer’s failure to provide an auxiliary aid (this could include a failure to provide specialist equipment or software, or a failure to provide services such as a sign language interpreter or support worker).
The duty arises where the employer knows, or ought reasonably to know, that the employee is disabled and is likely to be placed at a substantial disadvantage compared to those who are not disabled.
The Home Office accepted that Ms Kuranchie was disabled, and that it had knowledge of her disabilities at the time.
Kuranchie – Employment Tribunal decision
The Employment Tribunal found that the Home Office had failed to make reasonable adjustments because it had applied a provision, criterion or practice (a requirement that Ms Kuranchie carry out the same volume of work as her colleagues) and not reducing her workload meant her working extra hours as a result of her disabilities.
The Home Office appealed to the Employment Appeal Tribunal arguing that Ms Kuranchie had not suggested or asked for a reduced workload, nor was this suggested in the dyslexia report Ms Kuranchie had shown to her line manager.
Kuranchie – Employment Appeal Tribunal decision
The EAT found that the Home Office should have made the reasonable adjustment of reducing Ms Kuranchie’s workload to avoid the disadvantage she suffered – allowing her to work compressed hours did not remove the disadvantage.
Key lesson for employers
The duty to make reasonable adjustments is not limited only to those adjustments put forward by the employee or suggested by medical evidence. The Employment Tribunal can find that an employer has failed to make a reasonable adjustment even where the reasonable adjustment was not identified by the employee prior to bringing a claim, or where the reasonable adjustment is suggested by the Tribunal itself. The Equality and Human Rights Commission’s Employment Statutory Code of Practice contains a list of potential adjustments, which may be a helpful starting point when considering what reasonable adjustments could be made.
It is ultimately a question for the Employment Tribunal to decide whether an adjustment is reasonable and the answer will depend on the facts in the particular circumstances. However, the Tribunal may take various factors into account, including the employer’s financial resources and the potential disruption to the employer’s activities, when considering whether an adjustment would have been a reasonable one for the employer to make.
Do you need advice on reasonable adjustments? We can help, just contact any member of the Pure Employment Law team (01243 836840 or firstname.lastname@example.org).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.