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What makes a reasonable adjustment reasonable?”

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The Spartacus Network has recently published its ‘Beyond the Barriers’ report which argues that common workplace arrangements act as a barrier for demoralised disabled employees.

The ‘Beyond the Barriers’ report  can be found at http://www.spartacusnetwork.org.uk/images/reports/BBReportAndAppendices.pdf.

The report concludes that more needs to be done to remove these barriers.

However, equality laws already require employers to take reasonable steps to remove workplace barriers for disabled employees. Perhaps a better understanding of these obligations is what is really needed. So what should employers do to comply with their legal obligations?

Well, although many employees with minor health issues will be disabled for employment law purposes, it is not automatically the case that they suffer disadvantages triggering obligations on the employer’s part. The best thing employers can do in the first instance is encourage an open culture of communication to identify where disabled workers are struggling or might struggle.

Where it is identified that an employee faces difficulty, the employer is probably obliged to make reasonable adjustments to remove that specific difficulty. Adjustments should always be assessed and made on a case-by-case basis.

In practical terms, this could mean extending contractual sick pay for an employee with higher absence levels where the absences are due to a disability. Or, expanding a car parking policy whereby senior staff benefit from designated spaces right outside the office in order to accommodate a junior employee with a mobility impairment.

Although these examples illustrate how reasonable adjustments can be quite straight forward and inexpensive where disabilities are caused by physical impairments, the position is more complex where workplace disadvantages are linked to a subjective mental health disability.

In all cases, employers should obtain the employee’s input (ideally through a face to face consultation) to identify any disadvantages they feel they are suffering, and any reasonable adjustments they feel would specifically help them. External advice from Occupational Health and a medical practitioner is highly recommended too, and will often assist.

As part of this consultation process, disabled employees might ask for more flexible working hours or to work from home (adjustments which the ‘Beyond the Barriers’ report argues are fundamental to supporting disabled employees). It is also not uncommon for employers to be asked to transfer an employee to a different job and/or meet the cost of counseling or other therapy.

Whilst some employers may of course agree to such requests is it not compulsory to do so. The law only requires adjustments that are reasonable in the specific circumstances. Cost, disruption and practicability are the key factors when assessing reasonableness, together with the size of the organisation, the resources available to it and the nature of its activities.

A common sense approach should always be taken. Although the focus always has to be on supporting them, some high-cost adjustments that might be requested may not always be reasonable - particularly where resources are tight and where there is a more cost effective alternative which is just as effective.

Putting this into context, if an employee reveals that they are struggling to concentrate due to depression, it might be more reasonable to relieve the employee of any tasks which cause concentration difficulties rather than create a new role and recruit a replacement to fill their old role. Another alternative might be to relax any disciplinary and capability procedures in relation to under-performance and/or avoiding of certain tasks.

The important thing to remember that there is no ‘one size fits all’ answer. A proactive approach where the employer maintains a dialogue with a disabled employee is always best. Find out what the employee feels the workplace barrier is, explore effective ways to alleviate it and promptly implement the reasonable adjustments identified.

Engaging with disabled employees in this way and being flexible from the outset will undoubtedly boost morale and will always end up less burdensome than a costly and time-intensive discrimination claim.

If you have any questions please email me at victoria.clark@clarionsolicitors.com.

 

 

 

 

 

 

 

 


 

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