Advising employers on making adjustments

The duty to make adjustment is covered within Section 20 of the Act and states three requirements:

1)    a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with person who are not disable, to take such steps as it is reasonable to have to avoid the disadvantage.

2)    a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

3)    a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

An important case within making reasonable adjustments was Archibald v Fife Council (2004) whereby a road sweeper became disabled and could no longer do her job. The House of Lords recognised that the duty to make reasonable adjustments may place a greater onus on employers to treat a disabled person more favourably than a non-disabled person to remove the disadvantage caused by the disability, even with redeployment.

The Griffiths v The Secretary of State for Work and Pensions (2014) case highlights the duty to make reasonable adjustments extends to attendance management. Here, a provision, criterion or practice is pointed out to be that of an attendance management policy whereby a disabled person may be put into a disadvantage if they are held accountable to such a policy by means of being at a higher chance of more sickness absence than a person without a disability. Consideration needs to be given by an employer as to what is tolerable or reasonable (for example extending a trigger point for sickness absence from 6 days per year to 10 for example). Griffiths had 66 days of absence of which 62 were disability-related and wanted more. This was held to be unreasonable.

Section 21 of the Act deals with a failure to comply with a duty to make reasonable adjustments. In essence, not complying with the requirements set out under Section 20 is a failure to comply with a duty to make reasonable adjustments. Section 21 goes on to state that “A discriminates against a disabled person if A fails to comply with that duty in relation to that person”.

It is important to note that it is the employer’s decision as to what is reasonable or not. This is based on organisational need, strategy, size and turnover in relation to feasibility and is for them to justify.