Duty to provide reasonable adjustments
The Disability Discrimination Act 1995 Section
6 and Section 16 impose a duty on the employer to provide
reasonable adjustments. The initial duty imposed on the employer
is to make reasonable adjustments to working practices, premises
type of work done etc to ensure that the employee is not disadvantaged
by the systems working practices or physical features of the
premises.
Reasonable adjustments
apply to :-
a) Any arrangements made by or on behalf of the employee;
b) Any physical feature of premises occupied by the employee;
c) Any requirement applied to interviews for job applicants
and also Terms and Conditions of employment for the employee.
At the beginning of this web page I promised
not to deal too much with the intrinsic technicalities of
the law and we have made every effort to try to explain in
the simplest possible terms what the law is. However, determining
arrangements under the Disability Discrimination Act, I feel
it necessary to refer to case law. The case I am going to
refer to is Jones –v- The Post Office which is a Court
of Appeal case in 2001.
Mr Jones was a postal worker on a rural delivery round.
As part of his job he was required to drive a post van.
He was diagnosed with diabetes which needed to be controlled
through diet and tablets. He had a heart attack and
his treatment was changed to cover insulin. It was the
Post Office policy to require him to cease all driving
duties if he was on insulin. In the subsequent ruling
at the Court of Appeal, the Judges said that all the
Tribunal have to do is find themselves in considering
whether the reason given for the less favourable treatment
can properly be described as both material to the circumstances
of the particular case and substantial. |
The Court then provided a test for the Tribunal’s
to adopt in making this determination:
- First of all, identify what the employee’s
disability is.
- Secondly, what was the discrimination
by the employer’s disability.
- Thirdly, what was the employers reason
for treating the employee in this way and is there a sufficient
connection between the employer’s reason for the discrimination
and the circumstances of the particular case.
- Lastly, is that reason on examination,
a substantial reason.
This basically means that the Act itself
recognises that there are certain circumstances where discrimination
can be justified. For discrimination to be justified, it must
be both material to the circumstances of that case and substantial.
I give an example
from my own direct knowledge.
The facts of this case have been changed to protect the guilty.
A factory employed a Secretary for 15 years. The last
5 of those 15 years the Secretary was diagnosed with
rheumatoid arthritis. Because of the condition, the
Secretary’s output and typing ability was substantively
reduced. There were no alternative jobs available for
her to move to. She wished to continue as long as she
could typing and doing basic Secretarial work but her
condition was having a substantial affect on her ability
to type quickly and accurately. The employer in this
case obtained a medical report from a doctor and he
stated she would be able to continue her Secretarial
role not in a full time capacity but in a part time
capacity but not at the standard that the Company had
set for Secretaries of 45 words per minute. The Company
dismissed the Secretary on the grounds that although
she was disabled and they accepted the fact she was
disabled, they were justified in dismissing her because
failure to be able to do a job was both material to
the case and substantial. |
What do you think?
On the one side you can see that the employer
pays her to be a Secretary and pays her to be able to type
at 45 words per minute full time. The Act required them to
actively consider reasonable adjustments to prevent her being
disadvantaged. At first sight, relying on the doctor’s
report clearly she could not type at 45 words per minute anymore
and she could no longer work full time. Therefore, they felt
they were justified in dismissing her.
The reality of the situation is they were
under the duty to actively consider reasonable adjustments.
One of the reasonable adjustments was to consider whether
she could type quicker working part time so that they were
paying her less because she was only part time, she was reasonably
productive working part time and that together with help such
as providing a key board with larger keys, voice activated
recognition for standard typing or an adaptation to her role
so that she had to do less typing and could do other duties
that required her to be less dextrous was available to her.
The problem they faced at the Tribunal was
they did not set their mind to it. They did not consider whether
other adjustments could allow her to cope before deciding
that they were right to dismiss her on the grounds of capability
so they were unsuccessful in defending the claim at the Employment
Tribunal.
If they had considered these possibilities
and they were impractical for substantial reasons, then they
would have been justified in dismissing her, simply to jump
straight to justification is not normally enough, they have
to actively go through the process of thinking firstly are
there any reasonable adjustments that can prevent her disadvantage?
If there are no reasonable adjustments to prevent her substantial
disadvantage, then are we justified in dismissing. That is
the correct process to adopt.
Types of common adjustment include;
- a change of hours
- a reduction in hours
- allowing person say with dyslexia to
use a lap top or use a Dictaphone as opposed to putting
everything in writing
- allowing specialist equipment for people
who suffer back problems
- fire alarm systems that can be adapted
to flash light as well as make a noise for someone who is
hard of hearing
- providing a pager for the person who
is hard of hearing to enable them to communicate and be
advised of any situations.
- providing wheelchair access for someone
who is a wheelchair user.
What most employers do not realise is that
there are significant grants available through Access to Work,
that there are disability advisors freely available through
the Local Job Centres and that they can get free advice about
adjustments to potentially disabled people.
In conclusion, this general guidance note
on disability discrimination is just a general guidance. There
are great many complexities within the Act itself and you
should always seek proper legal advice about these issues.
As a general ethos however, it is true to
say that the large majority of the working population at some
point or other, could become disabled for the purposes of
the Disability Discrimination Act and that the purpose of
the Act is wholly sensible in requiring employers to actively
consider ways to allow people to remain in employment rather
than simply discarding them because of a health problem. It
also encourages those people who are disabled and cannot get
work and helps them back into the workforce.
Disability discrimination would include
also situations where unfortunately, people are bullied because
of their physical or mental impairment. We are aware of many
offensive remarks that people make poking fun at people with
disability and such words have been held to amount to disability
discrimination by an individual.
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