Reasonable adjustments & employment law

The issue of reasonable adjustments for disabled staff is perhaps one of the most difficult for employers. The difficulty is twofold being :-

1. In some cases it is obvious that a staff member is disabled but in others it can be far from obvious and the legal test for establishing disability is a difficult one, with many grey areas, especially where a medical condition is not obvious, is perhaps a mental health issue or intermittent. If the person is not disabled, then there is no duty on the employer to make reasonable adjustments.

2. Where the employer concludes. on legal and/or medical advice that the employee is disabled, the legal burden then falls on the employer to consider any adjustments, it is not down to the employee to have to raise the issue. Many employers also fall foul of thinking that adjustments means only physical adjustments to help the disabled person, such as a ramp, different kind of chair or other arrangements, whereas in fact the adjustments are more generalised, such as where a disabled persona may need more leeway than non-disabled staff when it comes to policies and procedures regarding sick leave as an example. Recent case law clearly indicates that it would be unlikely to be lawful for an employer to start paying SSP only or invoking an absence management procedure against a disabled person in the same way as a non-disabled person.

On the more positive side for employers, the law does take into account the size and resources available to the employer and the standard is to make such adjustments as are proportionate to the type of adjustments needed, the resources etc of the employer.

This is one area where employers are well advised to seek advice form experienced solicitors and also perhaps disability advisors. As each case is different, it is the value of experience which these experts have which can offer some insight into other similar situations they have been involved with. In addition, whilst a lawyer will be unlikely to be able to offer any guarantee that if they suggest a certain plan as proportionate it will be upheld by a tribunal, as an employer client you are entitled to rely on their professional skill and judgment, backed by professional indemnity insurance. taking advice may also well be considered favourably should any situation go anywhere near an employment tribunal.