Section 20 of the Equality Act 2010 requires an employer to make adjustments for a disabled worker in certain circumstances. Subject to the requirement that the employer knows the worker is a disabled person and has been placed at a more than trivial disadvantage by a provision, criterion, or practice of an employer compared to a non-disabled person then the burden is on the employer to make any adjustment that is reasonable to remove the disadvantage.
It is not in fact necessary for employee to even suggest an adjustment, the burden always rests upon an employer – see paragraph 10 of the Employment Appeal Tribunal’s decision in Home Office v Kuranchie (2017). As such the complaint one sometimes hears from employers that they can’t be expected to make adjustments if none have been suggested is baseless – it is always the responsibility of the employer to make adjustments, not necessarily the responsibility of the worker to suggest them.
It is however sensible for the worker to make suggestions; they have a much better understanding of their disability and how it individually affects them compared to anyone else. The EHRC Statutory Code of Practice advises clearly that worker engagement is an important part of the duty to make adjustments (although not, in itself, a legal part of the duty):
It is a good starting point for an employer to conduct a proper assessment, in consultation with the disabled person concerned, of what reasonable adjustments may be required. Any necessary adjustments should be implemented in a timely fashion, and it may also be necessary for an employer to make more than one adjustment. It is advisable to agree any proposed adjustments with the disabled worker in question before they are made.
Paragraph 6.32 of the EHRC Code of Practice
In practice most workers will engage with an employer and be more specific on what adjustments are required. Rather than saying “I am disabled and think you need to make reasonable adjustments” they will say “I think you should provide me an ergonomic chair, adjust my sickness consideration points, install bespoke software, adjust work targets, etc”. That is a sensible course of action to take – it puts a specific proposal before the employer.
There is however sometimes a confusion among workers about precisely what the duty to make reasonable adjustments means for an employer. If a worker makes a request for a specific adjustment and that is refused even though something else is done does that amount to a failure by the employer to make the adjustment that they are required to make?
Suppose, for example, an employer has a shift system that requires all workers to clock on at 8.30 am, and any lateness is subject to disciplinary sanction. An employee has a disability that means they are more likely to arrive late (perhaps because of arthritis or some other impairment) and, therefore, is at more risk of disciplinary sanction (because they are more likely to be late to work). The employee discloses this risk and the reasons to the employer and asks for a specific adjustment to change his start time to 10am. The employer refuses to grant the worker’s request and says the worker must continue to try to arrive by 8.30am. However, they accept that that is more difficult because of his disability and confirms if he is late for work, unlike other workers he will not be at risk of disciplinary proceedings for any lateness. Although the worker may be unhappy with that decision does that amount to a reasonable adjustment?
The answer is it all depends on the circumstances. The purpose of a reasonable adjustment in the most reasonable adjustment cases is as outlined in section 20(3) of the Equality Act 2010, which is “to take such steps as it is reasonable to have to take to avoid the disadvantage.” If the only disadvantage our worker experienced is the risk of a disciplinary warning, then the employer’s decision avoided that risk of a disciplinary warning (the substantial disadvantage) and would therefore be a reasonable adjustment; if the substantial disadvantage was something else as well, the reasonableness of the decision may still be in doubt.
This is the reason why it is crucial to identify in any case what precisely is the disadvantage or disadvantages a worker is placed under as that will materially impact on whether a sought-after adjustment is a reasonable one. An example of this can be seen in the Employment Appeal Tribunal’s decision in Linsley v HMRC (2018). The employer held open parking spaces for deliveries right next to the entrance, but workers could not park there and, if they did, this was a disciplinary matter. A worker asked for a guaranteed parking space because using the delivery spaces were not guaranteed to be available and if used should result in a warning. The worker needed a short journey from parking space to office because of disability reasons and the current arrangements meant there were two disadvantages: 1) risk of disciplinary warning if needed to use delivery space, and 2) the stress of not knowing whether there would be a space aggravating the symptoms of the disability. The employer did allow the delivery spaces to be used and guaranteed there would be no disciplinary warnings.
The employment tribunal dismissed the claimant’s case that the employer had not made reasonable adjustments, concluding that the decision to allow access to delivery bays discharged the employer’s duty to make adjustments. The EAT however, upheld the claimant’s appeal – while agreeing that the adjustment did discharge the duty in respect to the risk of disciplinary sanctions and also that refusing to grant a specific adjustment request did not render a refusal unlawful there had been no consideration of how that adjustment removed the second disadvantage and if it did not do that it cannot be said to have been a reasonable adjustment. The case was sent back to the ET to consider whether the approach reasonably removed this second disadvantage.
It is easy when dealing with reasonable adjustment cases to jump to conclusions but what Linsley shows is that 1) appealing to the duty to make adjustments is not a short circuit to getting the precise adjustment a disabled person wants, and 2) that the more time at the outset setting out exactly how a PCP disadvantages a worker – and making the point to list all these different ways – will be time well spent later on because if that work is not done an adjustment may be found to be reasonable that, had greater care been taken to identify all the disadvantages to which a worker is placed may instead have reached a different and more beneficial decision for the worker.
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