Disability · Uncategorized

The duty to make reasonable adjustments

discriminationThe BBC have been reporting that a Belfast women has won a £2,000 disability discrimination after event organisers, Eventsec Ltd, failed to make reasonable adjustments. The case itself, as reported by the BBC (I have not seen the judgement, strikes me as a helpful case with which to explain the duty).

The duty to make adjustments is a very powerful, and in my view under-utilised, right of employees in the workplace. Whether conducting sickness absence, performance, disciplinary, objective setting or a whole host of other meetings and workplace processes the duty to make reasonable adjustments can be a powerful tool to ensure employees are treated fairly.

The facts of the reported case can be summarised quite simply. Kayla Hanna was attending a Red Hot Chilli Peppers concert; Kayla has Type 1 diabetes. This meant that her body did not produce insulin, sometimes there can be a sudden drop in blood sugar (called a hypo) that can be life threatening. For that reason Kayla carried a bottle of Lucozade so if she needed to she could replenish her blood sugars and stay safe.

When she attended the gig she had a bottle of Lucozade to cover this eventuality but was told that there was a policy prohibiting event-goers from taking in bottles. Kayla explained that she needed the bottle because of her diabetes and showed evidence of her diabetes by showing her diabetes tattoo and insulin pack. Eventsec Ltd maintained that the rule applied to everyone and refused to allow Kayla to take the Lucozade with her. Thankfully, it appears that Kayla did not have a hypo attack but nonetheless was anxious for the duration of the concert.

The court found that Eventsec Ltd’s refusal to adapt the ‘strict policy’ was a breach of their duty to make reasonable adjustments and the court awarded £2,000 in compensation. It is, as most reasonable adjustment cases are, quite a simple factual situation. In the rest of this post I want to break the situation down showing the key requirements for when an employer is required legally required to make a reasonable adjustment.

Is there a Disability?

For the requirement to make reasonable adjustment to be engaged an individual must be a disabled person. For Kayla Hanna this was her Type One Diabetes. It practice a disability is manifested as a known medical condition but there is no necessary requirement that a condition be a medical one, and sometimes a medical condition (like diabetes) will not be deemed to be a disability.

The focus on establishing whether a person is not on whether or not a person has a certain condition (except for certain conditions where a person is automatically a disability such as certified visual impairment or cancer) but what effect the condition has on the person’s ability to complete normal day to day activities. Normal day to day activities is a wide ranging concept. This can be seen in the EU case of Ring which defined a disability as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” This could mean sometimes a disabled person cannot do something but it is more commonly the case that they can but it takes more time than it would for a non disabled person. The impairment must be long term to qualify, and long term means something that has lasted or is could well last for 12 months or more.

The fact is that under the Equality Act 2010 a very many people will be likely to be the disabled. For example, in my experience there are not many people on long term sick absence who do not have at least a reasonable argument that they are disabled but the biggest obstacle is people own reluctance to use the label as it is a term with a stigma.  However, adjustments like those found not to have been applied in Kayla are in the main exceedingly straightforward and cost nothing to apply but can make a huge difference to working lives. Whilst for a union rep raising disability is often a defence against management actions that is a sign that something has gone wrong – early identification can instead often avoid those situations arising in the first place.

Does the employer know there is a disability?

One of the difference in reasonable adjustment law in an employment field rather than a provision of services case (such as in Kayla Hanna’s case) is that the for the duty to make adjustment’s to be engaged the employer must know that the employee is disabled – that knowledge can come from being informed by the employee or by ‘constructive knowledge; in most non-employment cases the duty is anticipatory meaning they do not need knowledge of an individual’s disability. However, in Kayla’s case she informed the security officer of the disability, and showed evidence of this and her insulin pack and this would be likely to satisfy the requirement in any case. It is good practice for an employee to inform the employer in writing of the condition, and, as importantly, how this makes certain activities impossible or more difficult.

Is there an arrangement that places a disabled person at a disadvantage because of their disability?

The central plank of the duty to make reasonable adjustments is that the employer has a “provision, criterion or practice” that places the disabled worker at a substantial disadvantage compared to a non-disabled worker. That, at least, is the language used in the Equality Act 2010. In less grandiose terms however the requirement can be summarised as a neutral arrangement or practice of an employer that has harsher consequences on a disabled person, or more specifically, a specific disabled person.

In the  Eventsec Ltd case the company had a policy that was applied equally to all concert-goers: no-one was able to bring in any fizzy drinks or bottles. Legally speaking provision, criterion or practice are distinct, something can be a provision and not be a practice but practically speaking in most cases nothing turns on this. This was a policy that was neutral (it was not aimed at diabetics). However, when applied across the board as it was to Kayla, this had a more severe effect on Kayla as a diabetic than it would have otherwise. For a non-diabetic this may have meant mere inconvenience, or perhaps having to fork out for an overpriced replacement inside the concert venue. However, for  Kayla she was placed at risk of a hypo with no immediate source of raising blood sugar.

The importance of reasonable adjustment law is that a provision, criterion or practice can be found in innumerable circumstances. Alternatively, if there is a physical feature that places an employee at a disadvantage this will also engage the duty to make a reasonable adjustment;. A simple example of this would be a job applicant who uses a wheelchair who is invited to a job interview on the first floor but there is no lift available and just a flight of stairs which the applicant cannot ascend.

Is there an adjustment that might work?

The fourth aspect is the question of whether there is an adjustment that the employer could make that removes or mitigates the disadvantage caused by the provision, criterion or practice. For Kayla Hanna the disadvantage caused by the policy against drinks being brought into the concert could have been addressed either by dis-applying the policy in the case of disability or, as the court also suggested, bottles of Lucozade could have been given to disabled ticket holders.

A reasonable adjustment need to be guaranteed to succeed, all that is required is that there is something that could work. This means that the oft cited reason by workplace managers that an adjustment cannot be made as there is no guarantee of success is false.

Also, unlike most other types of discrimination law the law on reasonable adjustments recognises that sometimes an employer is required positively discriminate and treat disabled person more favourably. This was famously set out by the House of Lords in the case of a very important case of Archibald: “The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination.”

So, to give a common example, if an employer has a policy on convening disciplinary hearings after a certain number of sickness absences and an employee is more likely to be absent for disability related reasons then it will often be a reasonable adjustment to all an employee more days sickness absence before they start disciplinary proceedings than they would otherwise.

Is the adjustment reasonable? 

The last requirement is whether in all the circumstances of the case the adjustment is reasonable – this is a high hurdle to reach. Factors that are considered are cost, health and safety of staff, impact on operational effectiveness. However, it will be very rare where a person is at a substantial disadvantage for not adjustments to be possible. As was stated by the Employment Appeal Tribunal in Dyer v London Ambulance NHS Trust (2014) “It will be rare, though plainly possible, for there to be circumstances in which no reasonable adjustment can be made. Tribunals should think long and hard before concluding this.”

 

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