Defining Reasonable Adjustments

Hello and welcome to this webinar, in which we're going to have a look at the issue of reasonable adjustments with relationship to disability discrimination. So the starting point is Teoh understand disability. We're then going to understand the requirement to make reasonable adjustments. And then we're going to look at a range of different case law to try and understand in more detail what is and isn't a reason with Justman. So let's start at the beginning and look at the definition of disability because the requirement to make a reasonable adjustment only applies when there is an individual who is disabled. So we're in the Equality Act 2010 and disability is defined in Section six, subsection warm as a person. P has a disability. If a P has a physical or mental impairment, Andi be the impairment has a substantial on long term adverse effect on P's ability to carry out normal day to day activities. Now, the purpose of this webinar is not to looking great detail at the definition of disability. Andi, what is and isn't but would just pick up on one of two points within the definition because it is just really useful to remind ourselves of that when we talk. If substantial and long term. That means that the illness, injury, whatever it is has lasted for 12 months in medical opinion is going to last for 12 months or is terminal on. When we talk about normal day to day activities, we must remember that this is interpreted quite broadly in the disability discrimination at 1995 that preceded the equality at 2010. The definition off a normal day to day activities was quite prescribed, but it's not in the equality. At 2010 the list off activities that could be considered normal day to day activities has been removed, so it is interpreted quite broadly. But we're here today to look specifically at the issue. Ever reasonable adjustment on that is set out in section 20 of the equality at 2010 on this section sets out three requirements where a provision criterion or practice of the employer puts a disabled person at a substantial disadvantage in relation to a relevant matter. In comparison to persons who are not disabled, there is a requirement to take such steps as is reasonable tow. Avoid that disadvantage to where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter. In comparison to persons who are not disabled, there is a requirement takes that such steps as is reasonable to avoid the disadvantage. I'm requirement three where a disabled person would. But for the provision of a knocks Ilary aid, we could at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled to take such steps as is reasonable to provide the axillary eight. Now they are the three situations in which there is a requirement to make a reasonable adjustment. Basically, if there is a disabled person who either applies for a job, Andi is successfully getting that job or who already works for an employer on becomes ill or is injured on as a result, becomes disabled as defined in the equality at 2010. Then there is a requirement to consider reasonable adjustments. I wanted to points about reasonable adjustments before we get into the detail of the case law. First of all, the requirement is on the employer. There is nothing that says that the disabled person is required to suggest identify put forward a suggestion of what the reason adjustment could be. The employee can definitely talk for disabled person about it. Andi. In practical terms, that usually makes a lot of sense because that disabled person is probably Maura, where than most people let's do it, What might help, But the employees is under no obligation. And so the employee cannot argue that, well, we talk to the employees. They didn't come up with a reasonable address moon, and therefore on that basis there was nothing that we could do. That is, no potential argument on the other thing is, well, as an employer, where do you get the ideas for what a visual adjustment can be? Because most employees are no medical practitioners, they're no experts in the area of disability they might be facing on. They simply won't know on the answer to this is do try relevant charities. So there are charities that represent a lot off illnesses Andi problems that people might have on their often a fount of excellent knowledge on also talk to medical practitioners. So it would be unusual when deciding whether somebody is disabled or no to seek medical opinion on when seeking medical opinion as well as asking the medical practitioner is carrying out the assessment. Is this individual disabled as defined in the equality at 2010? It's worth, also say, And if they are disabled, what reasonable adjustments might help them in carrying out the work on just as a practical tips before we start looking at the law, it's also always worth attaching the job description to Theo the request to the medical practitioner. Because, of course, the medical practitioner isn't going to know every job in every organization. So there's some general points about reasonable adjustments since and practical points. Now let's start exploring the case law on what we're going to hear. It looked at a variety of cases in which both it has been ruled. The the employer should have made a real adjustment or what was being suggested wasn't reasonable. Let's take start with the case of Cordell versus of Foreign and Commonwealth Office, 2011 and Cordell was already working for the Foreign and Commonwealth Office. She was profoundly death that she applied for a promotion but meant that she would then be working overseas. She wants the best candidate for the job so she was successful. But she would require lip reading services so assistance in the job to be able to do it properly on the cost. If providing this, the foreign and Commonwealth Office suggested, was going to be about five times her salary. And on that basis, they said it was not a reasonable adjustment to put in place somebody that could work alongside and provide these lip reading services. She claims that that was disability discrimination because the applause employer had omitted to make a reasonable adjustment. She was unsuccessful in her argument on adjustment, but cost So much is not reasonable on what this tells us immediately is that in assessing what is and isn't a reasonable adjustment, it is perfectly acceptable on expected that there will be a view about cost. Now let's move on and look at a more recent case of South Stuff, a Cheer and Shropshire Healthcare NHS Foundation Trust versus Billingsley 2060. We're going to look at this case because in this case, the Employment Appeal Tribunal has given some useful guidelines on how to approach the issue ever reasonable adjustment in this case, the employees are concerned suffered from Despres Xia on that made it more difficult for her to absorb, process and retain information. Onda. As a result of this, she did make a lot of errors. A private consultant identified a number of AIDS. Onda also so intuitions training that might help her. This was all put in place. Her performance improved on then. The manager who had worked alongside ER, who had seen their at the referral to this private consultant on who had been instrumental in implementing the recommendations this management left on and on a new manager was put in place. Andi, remember if the support mechanisms that had been agreed were gradually removed on the employee's performance deteriorated she was dismissed on. She claimed both unfair dismissal on disability discrimination and she was successful on the Employment appeal. Tribunal said that the employer had not done enough to make reason adjustments and set out some useful guidelines. First of all, the employer did too little too late. What actually happened was that after her performances deteriorated, they then started to put in some adjustments again, but it was too little, too late. What the employment appeal tribunal said is that there is a duty to address the question of reasonable adjustments as soon as the disability is identified, and that is important. They also said the employer should not have performance managed the employees because what they did with that they probably employees through a performance management process which ultimately led to dismissal. If the winner improvements and they shouldn't have done that until the reasonable adjustments have been implemented on, there had been time to see whether they would make a difference. So, in essence, the employees should not be rushing to reach a quick conclusion. There is a requirement to make an adjustment if it would avoid the substantial disadvantage. The E 80 went on to say it might not remove the problem totally, but if it improves a situation, it should be considered. So this is another important point about reasonable adjustments. We're not necessarily looking for an adjustment. That means that the problem disappears totally. What we're doing is we're looking for an adjustment that makes things better. However, the 80 went on to say that if there is a small organization with limited resources and there's only a small chance that the adjustment will have a beneficial impact, then the adjustment is less likely to be reasonable. It was important to review the impact of the adjustments. In this case. The performance had improved when the adjustments have been made, which suggested that they were beneficial. So some important points about reasonable adjustments that come out from here just toe to summarize reason adjustment should be considered as soon as the disability is known about this should be given time to see if those regional adjustments actually have an impact on a reasonable adjustment. Doesn't have to get rid of the problem. It just has to make the situation better. It's also important to know that the purpose of a reasonable adjustment is to help the individual toe work on this was set out in the case of handling versus the commission is of Her Majesty's Revenue and Customs 2000 and seven. And here we had a disabled employees who was absent due to her disability on her sick pay ran out, so she was entitled company sick pay. It was only paid for a specified period of time. On that period of time, came to an end, which meant that she was no longer receiving any payment and she argued that a reasonable adjustment would be to extend the sick pay. Andi, she was unsuccessful. In this argument, the purpose ever resume adjustment is to help the individual back toe work. Paying sick pay arguably does the opposite of helping an individual back to work, because actually, what it's doing is making it easier to be off sick. So on that basis, the argument failed. If we look at the case of Archibold versus Five Council 2004 we get a little bit more insight into how reason adjustments might be considered. It's an interesting case. Archibold and worked as a road sweeper for the council, and she suffered in that she was actually involved in a road accident, nothing to do with her work on. As a result, she could no longer stand or walk for any length of time. And so, of course, that meant that she could no longer carry on as a road sweeper. So she took a number of training courses. Teoh enabled her to do clerical work. She was put in the council's redeployment pool, which meant that if they a vacancy arose in the council, the recruiter was required to look at the individuals in the redeployment pull on to consider whether any of them were suitable for the job before they recruited outside and those in the redeployment. Paul were made aware off any vacancies in the council and could also actively apply for them on Archibold. Applied for around 100 jobs if clerical work and didn't get any of them. The council's procedure was that after somebody had been in the deployment Paul for a certain period of time, if they didn't get redeployed, then they were dismissed and article was dismissed and she argued that this was disability discrimination. There was no question that she was disabled following the great accident on the A reasonable adjustment would have been to give her one of the jobs without her being engaged in a competitive interview, because in a competitive interview it didn't work out well for her because she'd never actually worked in clinical work and other people going for jobs hard. She had got the training, but she hadn't actually worked in a job, and she was successful in her argument. A reasonable Justman would have been to give her a role without competitive interview now, in the case of Wade vs Sheffield Hallam University, 2013 weighed Try to apply the Archbold argument. So Wade was disabled. There was a restructuring in the library of the university where she worked. Her job disappeared on Bond. She applied for a job that typically wanted and she argued, on the basis of Thea Archbold, ruling that a reason adjustment would be to give her the job without her undergoing a competitive interview. But the difference between her and Archbold was that were a number of competences that had been identified for the job. Wait, want and she didn't have them. So she wasn't qualified to do the job on On that basis. Her argument failed, and it's an important point of understanding the Archibald ruling. A reasonable adjustment could be to give somebody a job that they are qualified to do. But a reasonable adjustment is not giving somebody a job that they are not qualified today, so that's an important point to note now. Another interesting case is G four s Cash Solutions UK LTD. Versus Pau 2016. On In this case, the employees Pau worked on the cash machines going in, emptying them he was also an engineer. Hey had a back problem, which meant that he was no longer able to continue with the nature of the work that he was doing. But he was redeployed to a job that was less demanding on DLA Sena on. Therefore, the employer applied a 10 person pay deduction to reflect the salary that people doing this, this job that Powell was moved to were paid on. Powell argued that a reasonable adjustment would be to continue paying him the rate that he got in his old job without increases until the people doing the new job caught up with his salary on. He was successful in arguing that Now the court ruling does say this doesn't mean that pay protection, which is what this Waas will always be a reasonable adjustment, but in this case, the employer could afford to pay it. Andi, therefore, it did seem reasonable to do that. There is also important today that the employer doesn't necessarily the employee doesn't get to choose what the reasonable adjustment saw on to look at this. We look at the case of Garrett versus Little, 2010. The claim was a manager in one of supermarkets on she developed an illness included muscle stiffness, fatigue and pain. Andi. As a result, she wants classified as disabled, and she asked for adjustments, be made to her work to her shifts onto the duties at which he was carrying out on Little decided that the easiest way for them to apply these adjustments was actually for her toe work in a different store. There was a mobility clause in her contract, so they applied up and moved her to another store. This other store was only four miles away. It was still closed to both her home on her GP on indeed, actually to the hospital. This store had other managers as well on. Therefore, it would be easier for them to make the adjustments to share out the duties. Garrett didn't want to move, and she took claims off discrimination, harassment, victimization, actually, on the E 80 The Employment Appeal Tribunal ruled that it wasan acceptable reasonable adjustment too little to make. It was a reasonable step to accommodate her disability, and hence her claims failed. So, just as I said, also start of this Webinar. There is no requirement on the employees to identify what the reasonable adjustments might be. There is also no right for the employee to decide that they don't like a particular reason adjustment if it addresses the problem. Andi, there is no breach of contract in applying it. Then the employer is entitled to decide what the best reason of adjustment might be saying. The key things to remember is that if on individual is disabled, there is a requirement on the employer. Teoh, try Andi. Identify a reasonable adjustment. The purpose. If the reasonable adjustment is to enable the individual toe work, it does have to be reasonable. It doesn't mean that the employer has got to pay an excessive amount. Andi. It's also important to remember that there is a responsibility to make that reasonable adjustment as soon as the disability is known about that time must be given to save the reasonable adjustment, has any impact and a reasonable adjustment doesn't have to get rid of a lot the difficulties that caused by the disability. If it makes some improvement, then that could mean that it is