Is the adjustment reasonable?

Only “reasonable” adjustments are required. For example, it was not reasonable to slot a redundant disabled employee into a role when she could not meet core selection criteria even with training (Wade v Sheffield Hallam University [2013] UKEAT/0194/12/LA) or to adjust core criteria (Lancaster v TBWA Manchester [2011] UKEAT/0460/10), or to red circle (i.e. protect) the pay of a disabled worker transferred to a new role by agreement to accommodate their disability (British Gas Services v McCaull [2001] IRLR 60).

Paying extra sick pay beyond the contractual entitlement is rarely a reasonable adjustment (O’Hanlon v HM Revenue and Customs [2007] EWCA Civ 283, followed in RBS v Ashton [2010] UKEAT/0306/10). However, paying extra sick pay could be a reasonable adjustment where the disabled person’s absence results from the employer’s failure to make reasonable adjustments that would have enabled the employee to return to work (Nottinghamshire County Court v Meikle [2004] IRLR 70).

If an adjustment is reasonable, an employer must make it. What is reasonable depends on all the circumstances.

In Jennings v Barts and the London NHS Trust [2012] UKEAT 0056/12/0502, it was not a reasonable adjustment to modify a standard absence management procedure where this would have caused costly disruption.

An adjustment is not reasonable if it is not likely to help remove the disadvantage and enable the employee to return to work. For example, the duty does not extend to helping an employee access ill-health retirement as an alternative to dismissal (Mylott v Tameside Hospital NHS Foundation Trust [2010] UKEAT/0399/10/DM), or to promoting rehabilitative care for its own sake where there is no realistic prospect of a return to work (Salford NHS Primary Care Trust v Smith [2011] UKEAT/0507/10).

Employers are allowed to take into account factors such as:

• the extent to which the adjustment is likely to alleviate the disadvantage. It is enough to show a “real prospect” that the adjustment would have removed the disadvantage (Romec v Rudham [2007] UKEAT/0069/07);

• the impact on the health and safety of others, and whether this can be managed;

• how practical it is;

• financial costs and disruption;

• the employer’s financial and other resources, the allocated budget and other budgetary demands;

• the availability of outside support, for example, Access to Work; and

• the type and size of the employer.

It is not the law that an adjustment will not be reasonable if it involves the employer having to pay out hard cash. In Crofts Vets Limited v Butcher [2013] UKEAT/0430/12/LA, a vet practice breached the duty to make reasonable adjustments by failing to pay for a series of private psychiatric sessions to treat ill health caused by overwork at a capped cost of £750, recommended by the expert whose advice the employer had sought. There was evidence that the sessions would have helped a successful return to work. The employer also breached the duty to make reasonable adjustments in this case by failing to discuss the expert’s recommendations with the employee. This case illustrates how the ongoing duty to consult with disabled workers and their reps is an integral part of the duty to make reasonable adjustments.

An employer cannot pass on the cost of making adjustments to the employee, in the absence of an express agreement allowing this.

Assistance with cost may be available through the Access to Work scheme. Details are available at: www.gov.uk/access-to-work/overview.