1 July 2005
With the Disability Discrimination Act 1995 (Amendment) Regulations 2003 now in force, and the Act itself now in its tenth year, it is essential not only to reaffirm understanding of the legislative concepts generally but also to recognise the evolving nature of the more onerous duties – the focus of this article is the duty to make reasonable adjustments.
Prior to October 2004 an employer could potentially justify a failure to make reasonable adjustments. This is no longer the case, where an adjustment is one which is reasonable to make, then the employer must make it.
The changes have been incorporated into the Disability Rights Commission, Code of Practice – Employment and Occupation (the Code). Although the Code is not legally binding on employers, courts and tribunals must take it into account.
The duty to make reasonable adjustments arises where the disabled person concerned is placed at a substantial disadvantage in comparison to a non-disabled person by a provision, criterion or practice, or a physical feature of the employer’s premises.
The duty relates to applicants, employees and ex-employees who are disabled within the meaning of the Disability Discrimination Act.
Provisions, criteria and practices include arrangements for determining to whom employment should be offered, and the terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.
Physical features include any feature arising from the design or construction of a building on the premises occupied by the employer.
Whether it is "reasonable" for an employer to take particular steps depends on the effectiveness of the step in preventing the disadvantage and the practicality for the employer of taking a given step. Other considerations are the size and resources of the business, the financial implications for the business, the value of the employee’s experience or expertise, and the availability of financial assistance to make the adjustment.
The Disability Discrimination Act provides a non-exhaustive list of adjustments an employer may make. It is advisable to agree any adjustments with the disabled person in advance. The suggested adjustments include:
- Making adjustments to premises (e.g. the widening of doorways to allow wheelchair access)
- Allocating some of the disabled person’s duties to another person
- Transferring him to fill an existing vacancy
- Altering his hours of working or training
- Assigning him to a different place of work or training (e.g. a different desk or on another floor if this would be more accessible)
- Acquiring or modifying equipment (such as an adapted keyboard for someone with arthritis)
It is advisable to take advice or assistance from an external expert before determining whether or not to make a reasonable adjustment.
An employer does not have to create an alternative position, but should give consideration to allowing that employee to fill a current vacancy, where no reasonable adjustment would enable the employee to continue doing their present job.
Transferring to fill an existing vacancy is not limited to a vacancy involving the same kind of work or to a job of the same grade, a transfer could be upwards as well as sideways or downwards.
Note: The Disability Discrimination Act 2005, which came into force on 5 December 2005, extends the DDA to bring HIV, MS and cancer within the scope of the Act’s protection, effectively from the point of diagnosis. Further provisions are to follow in 2006.