Member Article

Disability Discrimination: Reasonable Adjustments

With Watson Burton LLP Law Firm

By the end of 1996 the provisions of the Disability Discrimination Act 1995 (“DDA”) were in effect. Amendments were later made by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 SI 2003/1673 and the Disability Discrimination Act 1995 (Pensions) Regulations 2003 SI 2003/2770, both of which were in effect from 1st October 2004.

The DDA contains a provision whereby an employer has a duty to make reasonable adjustments to prevent disabled persons being placed at a “substantial disadvantage in comparison to those who are not disabled” (s4A).

S18B of DDA provides a non-exhaustive list of matters to take into account when deciding whether it is reasonable to take a particular step in order to ensure compliance with the duty to make reasonable adjustments under DDA. Examples include, “the extent to which taking the step would prevent the effect in relation to which the duty is imposed, the extent to which it is practicable for an employer to take the step and the financial and other costs which would be incurred by an employer in taking the step and the extent to which taking it would disrupt any of an employer’s activities”.

S18B also includes a list, again this is not exhaustive, of steps which could be taken to ensure compliance with s4A. This includes making adjustments to premises, acquiring or modifying equipment or altering hours of working or training.

What is a reasonable adjustment? - Cases

An employer’s failure to make an initial assessment to determine what steps are necessary to take to prevent a disabled person being placed at a disadvantage would be a breach of s4A (Mid Staffordshire General Hospitals NHS Trust v Cambridge 2003 IRLR 566). However, the Employment Appeals Tribunal in Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 644, held that although it was good practice to do so, there was no duty on the employer to consult the disabled employee in relation to what adjustments are necessary.

Making reasonable adjustments would not normally require an employer to pay more sick pay to an employee who is disabled (within the meaning of the DDA) than it would do to a non-disabled employee - O’Hanlon v HM Revenues & Customs 2007 IRC 1359. There could be rare circumstances where a greater level of sick pay would be reasonable, for example, where the employer has caused the employee’s absence due to their failure to make reasonable adjustments (Nottinghamshire County Council v Meikle 2004 EWCA Civ 859).

In British Telecommunications plc v Pousson 2005, not allowing a diabetic employee time off-line to test his blood sugar level and administer insulin and not allowing access to food and drink at his place of work was a failure to make reasonable adjustments. Clearly, the duty contained in s4A is potentially onerous on employers and in practice means tribunals are likely to impose stricter obligations on larger employers who have more resources.

If you have any queries relating to this article, or any other Employment matter, please contact Laura McIntosh at Watson Burton LLP on 0191 244 4444 or email laura.mcintosh@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .