Following on from yesterday’s first instalment of Daniel Barnett’s Employment Law Matters podcast, we spoke to our employment law specialist, Vina Madhavji about the topics Daniel covered, and she has provided her own thoughts on the topics covered.
The Duty To Make Reasonable Adjustments
The law states that a person has a disability if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Where an individual meets the legal definition of disability an employer will have a duty to make ‘ reasonable adjustments’ and treat an employee more favourably so that the disabled employee is placed on an equal footing to non-disabled employees.
Discrimination arises where the employer does not to comply with the duty to make reasonable adjustments as it relates to the particular disabled individual. An employer must know ( or ought to know) about an employee’s disability for the duty to apply.
The duty to make reasonable adjustments applies in relation to all disabled workers of an employer. There is no minimum period of time a worker needs to have been employed for to benefit from the protection of the duty. The duty also applies in relation to disabled job applicants.
What is a ‘reasonable’ adjustment depends on the circumstances of each case. Factors such as the size and economic resources of the employer will determine what constitutes a reasonable adjustment in each individual case. There are 3 types of situation where the duty to make a reasonable adjustment arises:-
Where a provision, criterion or practice (‘PCP’) places a disabled person at a substantial disadvantage
Where a PCP of an employer puts a disabled employee at a substantial disadvantage in comparison to a non-disabled employee, an employer will have a duty to make a reasonable adjustment in order to avoid the substantial disadvantage to the disabled person.
The definition of PCP includes any formal policy of an employer i.e. something that is openly written down in a policy document or otherwise declared officially.
The definition of PCP can also include informal policies and practices of an employer. For example, an expectation or assumption that someone will work late may be sufficient to amount to a provision, criterion or practice.
Where a physical feature places a places a disabled person at a substantial disadvantage
Where a physical feature, of a premises occupied by an employer, places an individual at a substantial disadvantage in comparison to individuals who are not disabled, an employer has a duty to take reasonable steps to avoid that disadvantage.
For example, clear glass doors may not be safe for a particular visually impaired worker. An employer may remove the disadvantage by signage highlighting the clear glass doors.
]The provision of an auxiliary aid
An auxiliary aid is a piece of equipment or technology that would assist a disabled person. For example an adapted keyboard or assisted listening technology. It can also include a service such the provision of sign language facilities.
Where, but for the provision of the auxiliary aid, the disabled person would be put at a substantial disadvantage in comparison to a person who is not disabled, then there is a duty to take reasonable steps to provide the auxiliary aid.
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