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Home > Feature Articles > Duty to Make Reasonable Adjustments

Duty to Make Reasonable Adjustments

Email Update 60

As an employer you have a duty to make ‘reasonable adjustments’ to ensure that a disabled person is not put to a substantial disadvantage in the workplace in terms of the Disability Discrimination Act 1995, as amended (DDA).

Section 1 sets out the definition of ‘disability’ and ‘disabled person’:

“… a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities …”

Section 4A(1) sets out the duty to make ‘reasonable adjustments’:

“Where -
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature having that effect …”

Adjustments can be made to any employment arrangements or to any physical feature of the workplace. Examples of adjustments that may need to be made include: allocating some work to another employee (temporarily or permanently), permitting a later start time, modifying premises and providing modified equipment. In each case what is a ‘reasonable adjustment’ will depend on the relevant and particular circumstances.

In the recent case of Secretary of State for the Department for Work and Pensions v Alam, the Employment Appeal Tribunal has provided guidance as to when the duty to make reasonable adjustments arises and when it does not.

You can access the text of the Judgment by clicking on the following link:

http://www.bailii.org/uk/cases/UKEAT/2009/0242_09_0911.html

The Employment Appeal Tribunal determined that there were two questions that required to be asked to determine whether or not the duty to make reasonable adjustments did or did not arise. Quoting from paragraphs 17 and 18 of the Judgment:

“1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in Section 4A(1)?

If the answer to that question is: ‘no’ then there is a second question, namely,

2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in Section 4A(1)?

If the answer to that second question is ‘no’, then the section does not impose any duty to make reasonable adjustments.”

Therefore, if you, as an employer, are able to answer ‘no’ to both these questions, then the duty to make reasonable adjustments does not arise.

In the case Secretary of State for the Department for Work and Pensions v Alam the Employment Appeal Tribunal illustrates the particular adjustment(s) that is required to be made must be in relation to the particular disability and the disadvantage that the employee is placed as a result.

Although this case shows that if you did not know that the employee had a disability (or the effect of the disability) you would not be liable, as an employer you can still be liable if you ‘ought to have known’. Accordingly, if you have some information that would suggest that the employee meets the definition of a disabled person and you do not ask relevant questions, in an attempt to avoid liability, you are unlikely to benefit from such a failure. In this case, you ‘ought to have known’, as had you asked relevant questions the employee’s disability, and the effect of the disability could have been ascertained. Ignorance, in these circumstances, would not be a defence.

Practical Guidance

In many cases, the nature and extent of an employee’s disability will be known and, consequently, you will be able to identify what reasonable adjustments (if any) can be taken, in order to prevent the employee being placed at a substantial disadvantage.

However, just because an employee may meet the definition of a disabled person within the meaning of the DDA, it does not mean that all adjustments requested, or all adjustments considered by you, need to be made. It is only reasonable adjustments that need to be made. What does and does not amount to a reasonable adjustment will depend on the particular employee and the particular circumstances.

If you are in any doubt as to what your obligations are as an employer, in any particular circumstances, then you may wish to obtain legal advice. Just Employment Law is well placed to provide you with appropriate advice and practical guidance in relation to disability discrimination and the other discrimination strands.