The duty to make reasonable adjustments
The most important part of the law against disability discrimination is the duty on employers to make reasonable adjustments. Basically this means that, where workers are disadvantaged by workplace practices because of their disability, employers must take reasonable steps, eg by adjusting hours or duties, buying or modifying equipment or allowing time off, so that they can carry out their job. “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take in order to avoid the disadvantage.” “The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take in order to avoid the disadvantage.” “The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to provide the auxiliary aid.” Provided an adjustment would be reasonable, an employer has no defence of justification for not carrying it out.
Employers are expected to act positively and constructively. In the key case of Archibald v Fife Council, the House of Lords said:
“The DDA does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way. 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.”
The ‘DDA’ has now become the EqA, but the point remains. The House of Lords’ use of the term “positive discrimination” is unfortunate. It is simply a case of removing unnecessary barriers, to place disabled people on an equal footing. However, it does illustrate how far employers must go. The Employment Code lists the following possible adjustments, giving an example for each. Previously most of these adjustments were written into the Disability Discrimination Act. It should not make any difference that they are now in the Code rather than in the statute.
* making adjustments to premises
* providing information in accessible formats
* allocating some of the worker’s duties to another person
* transferring the worker to fill an existing vacancy
* altering the worker’s hours of working or training
* assigning the worker to a different place of work or training or allowing home working
* allowing the worker to be absent during working or training hours for rehabilitation, assessment or treatment
* allowing the worker to take a period of disability leave
* giving, or arranging for, training or mentoring (whether for the disabled worker or any other person)
* acquiring or modifying equipment
* modifying procedures for testing or assessment
* providing a reader or interpreter
* providing supervision or other support
* employing a support worker to assist a disabled worker
* modifying disciplinary or grievance procedures
* modifying performance-related pay arrangements
* adjusting redundancy selection criteria
* participating in supported employment schemes such as Workstep
The Code points out that it may sometimes be necessary for an employer to take a combination of steps.
Where an employee becomes so disabled that s/he is no longer able to do his/her job at all, a reasonable adjustment may be to move him/her to another job, even at a slightly higher grade,...
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