Understanding Reasonable Adjustments: Key Insights for Employers

A question frequently asked by employers to employment lawyers is “how far is the business required to go to comply with the obligation to make reasonable adjustments for disabled employees under the Equality Act 2010 (the Act)?”

The recent Employment Appeal Tribunal (EAT) decision in the case of Bugden v Royal Mail Group has focused attention once again on the interpretation and practical application of the Act as to what will be considered to be reasonable adjustments. The Bugden case underscores the importance of employers actively engaging with disabled employees to understand their needs, and implement appropriate adjustments.

One point from the EAT Judgement was that it is necessary for the Employment Tribunal to ask in cases arising from ill-health absence if the employer had considered redeployment to an alternative role as a possible adjustment. The judge stated that this question was relevant to the question of whether the action of dismissing the Claimant was within the range of reasonable responses of a reasonable employer and should be addressed by the Employment Tribunal, even if the parties have not raised this as an issue.

Legal Framework

In general terms, employers have an obligation under the Equality Act 2010 (the Act) to make reasonable adjustments to ensure that employees who meet the statutory definition of a disabled person can be accommodated within the working population and are not substantially disadvantaged compared to non-disabled counterparts.

The obligation arises in three situations:

1. Where a provision, criterion or practice applied by or on behalf of the employer;
2. Where a physical feature of premises occupied by an employer; or
3. Where the lack of an auxiliary aid, places a disabled person at a substantial disadvantage compared with people who are not disabled.

This obligation is an example of ‘positive’ discrimination in the sense that the employer is required to consider the matter and potentially take action to treat the disabled individual more favourably than non-disabled colleagues.

The definition of disability for the purposes of the Act is “a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

The Act defines long-term in this context as having lasted, or being likely to last for at least 12 months or the rest of the person’s life. The word “substantial” is defined as more than minor or trivial. Some conditions are deemed to be disabilities for the purposes of the Act from the point of diagnosis including cancer, HIV and multiple sclerosis.

The obligation to make reasonable adjustments can include various forms of action by the employer including changes to work practices, alterations to the physical work environment, and modifications to job roles and responsibilities.

The word “reasonable” is key when considering possible adjustments. The Government guidance states that factors such as the cost and practicability of making an adjustment and the resources available to the employer may be relevant in deciding what is reasonable. The question of what is considered to be “reasonable” is an objective one, and will depend on the circumstances of each case.

Practical Application

In a situation where an employer may be under an obligation to make reasonable adjustments, we advise that the starting point for the employer is to engage with the employee to discuss the circumstances and establish what is needed. In circumstances where it is clear that an adjustment cannot reasonably be made to avoid a disadvantage, then the employer can lawfully decline any request.

Whilst the Act does not include an exhaustive list of adjustments, there is supplementary guidance that provides examples such as: removing movable barriers like furniture; thinking about wheelchair accessible workspace and meeting rooms; allowing a guide or hearing dog into the workplace; purchasing specialist equipment, such as an ergonomic chair; discounting disability-related sickness leave for the purposes of absence management; providing additional supervisory guidance / support; offering a disabled parking space in the car park; and allowing different start and end times to the working day. As you will appreciate, the nature of the adjustment very much depends upon the actual disability.

Ultimately, it is for an Employment Tribunal to consider and reach a view, in the event of a claim of alleged unlawful disability discrimination, what, if any adjustment should have been made for a particular disabled employee, but it is important that you have a clear audit trail of the steps you have taken to address any disadvantage of your disabled employee.

Failure to make a reasonable adjustment if under a duty to do so will be a discriminatory act and the employer may be liable to pay damages if a successful claim is brought in the Employment Tribunal.

Ian Bugden v Royal Mail Group

In the Bugden case, an employee of Royal Mail Group, suffered from severe anxiety and depression and was disabled in terms of the Act. The mental health issues were exacerbated by the demands and environment of his job, leading to frequent absences and a considerable impact on his ability to perform his duties.

Mr Bugden alleged that Royal Mail Group failed to fulfil its duty to make reasonable adjustments to accommodate his disability. He argued that the company did not take adequate measures to mitigate the stressors in his work environment that aggravated his anxiety and depression.

The Employment Appeal Tribunal reiterated that reasonable adjustments are necessary to ensure that disabled employees can work without being at a significant disadvantage and highlighted several critical points:

1. Awareness of Disability: Royal Mail Group was fully aware of Bugden’s disabilities and their impact on his work performance.
2. Failure to Act: Despite this awareness, the company did not take reasonable steps to address the disadvantage faced by Bugden.
3. Scope of Reasonable Adjustments: The EAT clarified that reasonable adjustments could include, but were not limited to, the following:
   • Workload Adjustment: Modifying Bugden’s workload to reduce stress.
   • Flexible Working Hours: Allowing flexibility in work hours to accommodate Bugden’s medical needs and varying levels of energy.
   • Support Mechanisms: Implementing regular check-ins and support sessions with a manager or occupational health professional to provide ongoing support.

We understand the complex nature of dealing with any disabled employee, if you have any questions regarding the obligation to make reasonable adjustments, please contact Stuart Robertson or Graham Millar in our Employment Law team.

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