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  • Lyndsay Salmon

Be Reasonable!

According to government research* 7.7 million people of working age (16-64) considered themselves disabled in April-June 2019, this is 19% of the working age population. Of this 7.7 million, circa 4.1 million were in employment.


So what does this mean for employers?


The Equality Act 2010 requires employers to make reasonable adjustments for both job applicants and current employees with a disability. Ideally these adjustments are recommended following a review by qualified occupational health providers or perhaps a review by the government provider Access to Work, however there is nothing to prevent an employee themselves requesting the adjustment.


I would advise caution against the manager themselves suggesting an adjustment, as your medical knowledge and the knowledge of the employee's particular needs will not be sufficient and you may inadvertently offend or discriminate. If in doubt, be led by the experts.


''Reasonable adjustments'', similar to a well know wood preservative, does what it says on the tin. It should be an adjustment, and it should be reasonable. The adjustment maybe a change to, or additional, equipment, including software; for example I supported a blind employee in the installation of voice activated software (paid for by Access to Work). They paid for her to have a taxi to and from work too. The adjustment might be an amendment in duties or role; perhaps the position can be amended so the employee doesn't need to lift more than 10 Kilos for example, or it might be an adjustment of hours (which is then paid accordingly) or working pattern, with the same hours being worked but perhaps starting early and finishing early to avoid a difficult commute.


What is its not, is the employee's right to demand changes regardless of the employer's difficulty in doing so and that is where the 'reasonable' part comes in. What is reasonable will depend on a number of factors which we will explore further below.


The cost: What might be reasonable for a large coffee chain would be different to what would be reasonable for a small independent cafe. The organisation's size and finances will be taken into account. It also will not wash to say 'this particular branch or department makes no money or runs at a loss'. The courts would look at the whole organisation - not each sub section. In addition employers can sometimes get financial assistance with the cost of adjustments, for example from Access to Work. https://www.gov.uk/access-to-work so cost will often not be a good excuse for failing to make an adjustment.


The practicality: For example, it would be expected that a large organisation could provide cover for an employee to allow them to work reduced hours. A small butcher for example with 3 employees may find this impractical and therefore unreasonable.


Health and safety considerations: It would, of course, not be reasonable to make an adjustment that would risk the health and safety of a person with a disability or of other people. Having said that; H&S should not be used as an excuse. A full risk assessment by specialist should be carried out to ensure it is genuinely a H&S issue preventing the adjustment and not being spuriously declined by a reluctant manager.


If the employer can make the adjustment then of course they should. The adjustment should be documented in writing and sent to the employee too for their records so all are clear on what has been agreed. This should be monitored and reviewed regularly to make sure it is still working for everyone.


In most cases adjustments can be made and the manager and the organisation should be flexible and proactive in seeking to accommodate this. If it is genuinely not possible to make the adjustment, and the manager is not merely being 'a bit awkward ' (this happens) then the adjustment can be declined.


This may unfortunately result in the employee being redeployed to another role, if there is a vacancy (and you can amend pay and benefits accordingly), ill health retirement if the pension scheme rules allow or in the worst case, a capability dismissal. Any employer would be well advised to speak to an HR expert or solicitor if you find yourself in this situation.









*https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7540

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