An employer must have knowledge of an employee having a disability before being obligated to make reasonable adjustments. If the employer has no such knowledge then he is under no duty to make reasonable adjustments. However, such knowledge can be imputed to the employer by other employees, managers, agents, and occupational health personnel. So what exactly is the burden on employers to protect their disabled employees?
It is at the employer’s discretion what adjustments it deems reasonable to make, and employers should take preliminary steps in assessing what measures will prevent the employee from being disadvantaged because of his disability. However, consultation with the employee beforehand is not a mandatory requirement (Tarbuck v Sainsburys Supermarkets Ltd).
An employer is no longer able to justify a failure to make reasonable adjustments where they are necessary. All possibilities must be considered for each individual case, and a decision made as to whether each is a suitable adjustment to make, or not, and why. In cases that prompt tribunal hearings the employer should have documentary evidence to support these considerations.
In O’Hanlon v The Commissioners for HM Revenue & Customs, the tribunal held that when a disabled employee exhausts his entitlement to sick pay stipulated by the employment contract after prolonged absences, the employer is only obligated to offer additional sick pay in extreme exceptional circumstances, such as a case for occupational stress or in connection with some grievance occurring at the same time as the sickness.
The Government White Paper ‘Ending Discrimination Against Disabled Persons’ stated that the duty on employers to make reasonable adjustments would not give rise to a financial burden. Employers are within their right to consider such costs, and it was even suggested that future regulations would uphold a financial limit to further aid the employer.
Sue Maynard-Campbell, chairwoman for the Group for Solicitors with Disabilities (GSD), suggested that the “most reasonable adjustments are low cost and no more onerous than providing a specific type of laptop or moving equipment to allow wheelchair access”. However, there remains the other fifty percent, cases where more advanced and specialist facilities are required, which may be more expensive than the Government realize.
Baker suggests the following measures: preferential allocated car parking, ramps to facilitate access, lifts, handrails on staircases, accessible toilets, improved lighting, relocation of switches, sockets and operating buttons, improved signage, modification of door handles and taps, voice activated software, induction loops, task lighting, text phones, visual warnings and adapted office equipment and furniture.
Baker reiterates that these measures can extend to the pre-stages of employment. For example, employers might be expected to present application forms in larger size font or in Braille, or alternatively allow employees to submit applications orally in a recorded audio tape format.
An employer is within his rights to employ a quota of disabled people or even to keep aside specific job roles for disabled people only. The case of Archibald v Fife Council confirms this, where the House of Lords stipulated that in practice the employer may even be obligated to do so. This may have the effect of placing an unfair burden on employers to withhold vacancies from a hypothetical candidate who is suitable for the role but who is not disabled.
Disability Awareness Training
Jackson illustrates the legal issues that would need to be addressed by disability awareness training. They are: legal obligations and penalties under the Disability Discrimination Act 1995 and associated Codes of Practice, guidance on best practice from relevant service providers and institutions, the employer’s own policies and procedures relating to disabled employees, customers and service users and specific practical issues concerning access to the workplace, workstations and machinery.