What is a “reasonable” adjustment?


The duty to make reasonable adjustments is a practical duty. Only “reasonable” adjustments are required. This is very important. The duty should not deter employers from employing disabled workers. For example, it was not reasonable to slot a redundant disabled employee into a role for which she could not meet core selection criteria, even with training (Wade v Sheffield Hallam University [2013] UKEAT/0194/12/LA), or to adjust core selection criteria (Lancaster v TBWA Manchester [2011] UKEAT/0460/10), or to “red circle” (i.e. protect) the wages of a disabled worker who was transferred to a new role by agreement to accommodate their disability (British Gas Services v McCaull [2001] IRLR 60). 



However, it all depends on the particular facts of the case. There is no blanket rule that pay protection can never be a reasonable adjustment. For example, in G4S Cash Solutions (UK) Limited v Powell [2016] UKEAT 0243/15/2608, it was a reasonable adjustment for security and logistics business G4S to protect the pay rate of an engineer forced to take a lower skilled role due to his disability, in circumstances where G4S had been paying the higher rate for some time, leading him to believe this was a long-term arrangement he could rely on.


In the Powell case, the EAT pointed out that many reasonable adjustments involve a potential cost to the employer. Some are direct, such as paying for support to keep an employee in their existing role, and some are more indirect, such as protecting the disabled worker’s pay in a less skilled role, meaning that no support is needed. The fact that paying the disabled worker at a higher rate than their colleagues may cause discontent at work is not a good reason not to make this kind of adjustment (Powell).


In Crofts Vets Limited v Butcher [2013] UKEAT/0430/12/LA, a veterinary practice breached the duty by failing to pay for a series of private psychiatric sessions to treat ill-health caused by overwork, at a capped cost of £750. The sessions were recommended by the expert whose advice the employer had sought, and there was evidence that they would have helped a successful return to work.



The employer in this case also breached the duty to make reasonable adjustments by failing to discuss the expert’s recommendations with the employee. The duty to consult with disabled workers and their reps is an important aspect of the duty. 



An employer cannot pass on the cost of making adjustments to the employee, without an express written agreement allowing this.


Assistance with cost may be available through the Access to Work scheme. Details are available on the Gov.uk web portal.
Since 1 October 2015, Access to Work grants are capped for new claimants. The current cap is £41,400 a year (2016).


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



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


If an adjustment is reasonable, the employer must make it. A key question in determining “reasonableness” is whether there a good chance that, if implemented, the adjustments would help the disabled worker overcome the disadvantage. An adjustment that is unlikely to help the disabled person to work will not be reasonable. A “real prospect” that the adjustment will remove the disadvantage is enough to trigger the duty (Romec v Rudham [2007] UKEAT/0069/07) (see also Chapter 8 – Sickness absence and disability). 



Other relevant factors include:


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



• how practical it is;



• financial costs and disruption (see Cordell v Foreign and Commonwealth Office [2011] UKEAT 0016/11/0510);



• the employer’s financial and other resources, the allocated budget and other budgetary demands, including, in the public sector, other demands on public funds;



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



• the type and size of the employer.



The duty to make reasonable adjustments does not apply if the employer does not know and could not reasonably be expected to know the individual is disabled (Schedule 8, para 20(1) EA 10). A careful record should be kept of any notification to the employer.