Is an employer under a duty to make reasonable adjustments in the workplace for disabled employees?

An employer is generally under a duty to make reasonable adjustments for a disabled employee under Section 20 of the Equality Act, if they know or ought to reasonably know, that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.

In this podcast, our employment experts look at the issues that employers need to consider and how far they need to go to make reasonable adjustments in the workplace to accommodate a disabled employee.

Who do employers need to make reasonable adjustments for?

Employers have a duty to make reasonable adjustments for workers, employees, and even job applicants.  This duty extends to making enquiries of the employee or job applicant to determine whether reasonable adjustments may be required. Employers should not simply wait to be told a worker or an applicant needs a reasonable adjustment.

How does an employer know if an employee is disabled and likely to be placed at a substantial disadvantage?

The duty to make reasonable adjustments does not apply if an employer does not know, and could not reasonably be expected to know that an employee is disabled, and / or likely to be put at a substantial disadvantage.

The starting point in the Employment Tribunals is that the employer must have actual or constructive knowledge.

Actual knowledge of a disability can arise where an employee explicitly tells their employer that they are disabled, explains how this has a substantial adverse effect on their day to day life, provides their employer with supporting medical evidence, and sets out the reasonable adjustments that they need.

Constructive knowledge of a disability puts the onus on employers to take reasonable steps to work out what kind of disadvantage an employee may be put at. A formal diagnosis or explicit medical guidance as to reasonable adjustments is not determinative of disability. An employee who states that they have a particular condition (even in the absence of a formal diagnosis), the affect it has on them on a day to day basis, and cogent examples of the same, may provide an employer knowledge of their disability.

We have seen an increase in claims relating to self-diagnosed neurodivergent conditions, as  long wait lists for diagnostic reports mean that it is not always practicable for an employee to readily obtain a formal diagnosis. Employers should therefore be mindful that supporting medical evidence might not be available and will need to look closely at the specific facts of each case.

How can employers tell if an employee has a disability?

Evidence of potential disabilities can manifest in an employee’s performance, in 1-2-1’s, and in day-to-day interactions with employees. For example, an employer who is alive to issues being had by an employee who is struggling with their reading or their written communication may then have knowledge that the employee has a learning disability, such as dyslexia, in the absence of a formal diagnosis.

Can an employer use Occupational Health to determine whether or not an employee has a disability?

In short, yes and no! Occupational Health Reports are a very useful tool to get an independent opinion as to whether an employee may have a disability and if something in the workplace is putting them at a substantial disadvantage. They can also assist in providing suggestions as to how to remedy the substantial disadvantage.

However, Occupational Health Reports are not determinative as to the question of disability. Employers should engage with and analyse any guidance from Occupational Health critically, and should not simply ‘rubber stamp’ the advice received.

How does an employer know what reasonable adjustments it should make?

A good starting point is The EHRC Employment Statutory Code of Practice, which Tribunals must take into account if it appears relevant, and which contains a non-exhaustive list of potential adjustments that employers might be required to make. Employer organisations may also have policies in place which list potential reasonable adjustments.

Occupational Health or medical evidence could also assist in identifying reasonable adjustments which could help an employee overcome the substantial disadvantage faced. However, case law in the Employment Tribunals has also encouraged employers to work with closely with disabled employees to get creative and think outside the box when determining which reasonable adjustments should be made.

How does an Employer determine whether or not a proposed adjustment is reasonable?

Assessing the reasonableness of a proposed adjustment will be a multifactorial exercise which is very much dependent on the nature of the employer. In particular, Tribunals will look at:

• the size and resources of an organisation, as what may be a reasonable adjustment in a multinational conglomerate may not be reasonable for a small start up business operating at a loss;
• the cost of a proposed adjustment, which should be considered in the context of the employee’s role, the turnover of the wider organization, and whether or not external funding may be available, such as through organisations like Access to Work; and
• the effect a proposed adjustment may have on an organisation, taking into account the impact that an adjustment could have on team structure, client relationships, client confidence in the organization, service delivery, and other workers who may subsequently be disadvantaged by a reasonable adjustment made for their colleague.

If an employer considers that a proposed adjustment is not reasonable, they will to need to have cogent practical reasons to back this up at the time. Employers would therefore be well advised to keep a full paper trail where they are declining (or indeed implementing) reasonable adjustments, and ensure that any arguments as to why an adjustment is not reasonable is supported by evidence and sound reasoning.

Our Employment Law Solicitors at DMH Stallard are highly experienced in assessing the reasonableness of adjustments and assisting employers in protecting their position both before and after the commencement of Tribunal proceedings.

 For more information about any of the issues covered in this update, or if you are an employer or employee needing further advice, please get in touch with one of our Employment Law solicitors today.