Reasonable adjustments and disability
21 October 2021
Since the Disability Discrimination Act 1995 came into force over a quarter of a century ago, there has been an obligation on employers to make reasonable adjustments to overcome barriers which put a disabled person at a substantial disadvantage, compared with a person who does not share the disability. That requirement is now contained in the Equality Act 2010.
What is reasonable?
It is not a duty to do anything which could be done to overcome the disadvantage, but an employer will be expected to consider what adjustments could be made, and then to consider whether the adjustments are reasonable. It is good practice to discuss what adjustments might be required with the employee, and, where there is a charity representing people with that particular disability, to seek their advice on what adjustments they would recommend.
Once the potential adjustments have been identified, the employer will then need to consider whether they are reasonable. Adjustments can be almost anything – alterations to buildings to aid access, different telephone systems, variations to the hours of work, extra time off – the list is endless. In making the decision as to whether the adjustment is reasonable, the employer will need to consider the cost, the possible disruption to the business and whether it would materially overcome the barriers for the employee etc.
A recent case for guidance
In the recent case of Aleem v E-ACT Academy Trust, the question of whether enhanced payments to a disabled person were a reasonable adjustment was considered. The case involved a science teacher who suffered from mental health issues and whose condition amounted to a disability. She was unable to continue in her teaching role due to her condition and was offered the role of a cover supervisor so as to enable her to return to work from a period of sickness absence.
The role of cover supervisor was at a lower pay rate than a teacher, but the Trust offered to maintain her salary at teacher level during the probationary period which went with the new role. Ms Aleem raised a grievance claiming that she should be paid the teachers’ rate going forward after the probationary period. This grievance was rejected, as was her appeal.
Outcome of the claim
Ms Aleem brought a number of claims against her employer, including that the Trust’s failure to pay her at the teacher rate going forward was a failure to make a reasonable adjustment. The Employment Tribunal dismissed the claim. She appealed to the Employment Appeal Tribunal.
The EAT dismissed her appeal. They held that it was not reasonable to expect the employer to continue to pay the teachers’ rate by way of an adjustment once the probationary period and the grievance and grievance appeal had concluded. They held that the Employment Tribunal had been correct to find that it was appropriate for the Trust to pay the higher rate during the probationary period whist the grievance and appeal were ongoing as this had supported Ms Aleem’s return to work.
The Employment Appeal Tribunal also found that the Tribunal were right to consider the significant additional cost should the teachers’ rate be paid indefinitely, and that the Trust faced financial pressures at the time.
How reasonable is enhanced sick pay?
In a previous case regarding sick pay, O’Hanlon v HM Revenue and Customs, the Court of Appeal held that it would rarely be a reasonable adjustment for an employer to be expected to pay enhanced sick pay to a disabled employee, over a non-disabled employee. The Aleem case follows a similar theme, with the focus of reasonable adjustments being the return to work. However, employers should tread carefully and consider the facts for each case, as no two sets of circumstances will be the same.
It is for an Employment Tribunal to objectively decide whether it would have been reasonable to make the adjustment in the specific circumstances of each case. The Equality and Human Rights Commission 2010 Code of Practice provides useful examples of the types of reasonable adjustments which should be considered. There is also a large body of case law built up over the last 25 years, and although each case will be determined on its own facts, advice from experts can undoubtedly help prevent costly mistakes.
If you are an employer with questions about reasonable adjustments for disabled employees, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].