An employer has a duty to make reasonable adjustments for employees (and applicants for employment) with a disability. In this article we look at this duty in more detail and highlight a few key considerations for employers.
The first thing to consider is the definition of “disability”. The law defines a disabled person as someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
It is important to recognise that not all disabilities are visible. An employer would therefore be wise to ask applicants for employment to disclose if they have a disability that may require a reasonable adjustment in the recruitment process. Similarly, an employer would be wise to have policies that encourage employees to speak to their managers about any disability that might require an adjustment.
An employer does not have a duty to make a reasonable adjustment if it does not know or cannot reasonably be expected to know that the individual has a disability. However, employers should not then assume that they have no responsibility unless a disability is declared by the employee. There can be a number of indications that an employee or applicant may have a disability that requires a reasonable adjustment. If an employee’s attendance record is not good, there may be an underlying health condition as the root cause. The condition may be a disability and an employer may have to consider reasonable adjustments.
If an employer has concerns over an employee’s attendance or performance, it should address the concern with the employee and make enquiries regarding whether there may be a health condition that is contributing to the issue. If this is suspected, it is advisable to seek a medical opinion, either from the employee’s own doctor or by making a referral to an occupational health doctor for a report.
The duty to make the adjustment is on the employer. It is not a defence to say that the employee did not make suggestions as to what adjustments may be helpful. However, in most cases, employees will be happy to discuss how their employer can assist them so open dialogue between the employee and management should be encouraged.
Whether or not an adjustment would be considered reasonable depends upon a number of factors, including:-
- The resources available to the employer
- The cost of the adjustment to the employer
- The extent of the positive impact the adjustment may make to the employee
- How operationally practical it would be for the employer to facilitate the adjustment
Examples of some adjustments that may reasonably be required are:-
- Providing information in an accessible format
- Making adjustments to workspaces – chairs, computers, desks etc
- Making a ground floor workspace available
- Taking steps to alleviate stress
- Allowing a flexible working pattern
- Making allowances for disability-related absences in attendance management or redundancy procedures
For further advice on this or any other employment law matter, please get in touch.