An area of employment law that often troubles employers is the duty to make reasonable adjustments. When does the duty arise? What do employers have to do? How do employers know what to do?

Complying with obligations under the Equality Act 2010, can be tricky to navigate. Failure to make adjustments for disabled employees, which are reasonable in the circumstances, could lead to claims for disability discrimination.

So when does the duty to make reasonable adjustments arise?

It arises where a provision, criterion or practice applied by the employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Where that happens, the employer must take such steps as it is reasonable to take to prevent the disadvantage occurring.

The duty to make reasonable adjustments can apply where a physical feature of the employer’s premises places a disabled person at a substantial disadvantage or where an employer’s failure to provide an auxiliary aid has a similar effect. However, it can also apply in wider circumstances that can sometimes be more difficult to spot.

What is a provision, criterion or practice (PCP)?

A PCP can include any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.For example, imposing an absence management policy would amount to a PCP, as would a decision that an employee cannot work reduced hours.

In the recent case of United First Partners Research v Carreras [2018] EWCA Civ 323 the Court of Appeal held that an expectation, rather than a strict requirement could also amount to a PCP. It demonstrates that what amounts to a PCP should be construed widely.

In this case, the employee had previously worked long hours, often until 11pm. He then had a serious cycling accident as a result of which he suffered from symptoms of extreme fatigue which amounted to a disability for the purposes of the Equality Act 2010. After the accident, he complained that he felt under pressure to work late because of an expectation and assumption from his employer that he would. He claimed that the requirement to work late was a PCP and this placed him at a substantial disadvantage. The Court of Appeal agreed that an ‘expectation’ could amount to a PCP.

Is the employer always under a duty to make reasonable adjustments?

Only if they knew or ought reasonably to have known that the individual in question was disabled and that they were likely to be placed at a substantial disadvantage because of their disability.

What do employers have to do?

Employers are required to take reasonable steps to avoid the substantial disadvantage to which the disabled person is put by the PCP. Examples of adjustments could include: allocating some duties to other workers; altering the worker’s hours; modifying disciplinary or grievance procedures; modifying absence management procedures; and modifying performance-related pay arrangements. An employer may need to use a package of adjustments in order to alleviate the disadvantage.

Employers will need to understand what it is about the specific PCP that affects the employee and the nature and extent of the substantial disadvantage that they suffer. This will enable the employer to assess what adjustments are reasonable, focussing on the practical steps that they can take to alleviate the disadvantage experienced by the employee.

How do employers know what to do?

Employers should talk to the employee concerned and find out what adjustments they believe would help them. It is also advisable to receive input from Occupational Health or advice from medical experts.

Remember, the duty is to make reasonable adjustments. If an adjustment would not work then it is unlikely to be reasonable.

For further information relating to the points raised in this article, please contact Hannah Boynes, Senior Solicitor in our Employment Law Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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