Disability Discrimination: What is reasonable?30.09.2013
The duty to make reasonable adjustments for disabled employees can arise in three circumstances:
Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled. This is wide ranging and includes such things as recruitment, contractual provisions, employment policies or even informal practices.
Where a physical feature puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled. Examples here would be toilet facilities, building accessibility or furniture.
Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with individuals who are not disabled. An auxiliary aid is something which provides support or assistance to a disabled person (for example, a specialist piece of equipment, such as an adapted keyboard or text to speech software).
What is a substantial disadvantage?
Discrimination legislation describes “substantial” as “more than minor or trivial”. It is a relatively low threshold and, therefore, an employment tribunal is likely to find it easy to conclude that a claimant suffered a substantial disadvantage. Whether an employee is placed at a substantial disadvantage depends on the individual facts of the situation.
Taking steps to identify disability
A business is not expected to make reasonable adjustments if it does not know, or could not reasonably be expected to know, that the disabled person has a disability and is likely to be placed at a substantial disadvantage. Reasonable steps should be taken to put a system in place to help the business identify whether individuals are disabled and at a substantial disadvantage. If a business should have known about a disability, for example if it would have been discovered from an occupational health assessment, then the duty to make reasonable adjustments will arise.
What is a “reasonable” adjustment?
Although each situation will be different, there are a number of factors which may be taken into consideration when deciding if the steps a business has taken were “reasonable”, including:
• Whether the adjustment would actually solve the disadvantage identified.
• The practicality of the adjustment.
• The impact of the adjustment on the business as a whole.
• The financial and other costs of making the adjustment.
• The size of the business.
• It is good practice for the business to ask the disabled person about possible adjustments. It is also advisable
to agree any proposed adjustments with that person before they are made.