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Disability Discrimination: What is reasonable?

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.