Reasonable adjustments 





A key concept of the EA 10 is the duty to make reasonable adjustments (section 20, EA 10). This is a positive statutory duty owed by the employer to a disabled person to take “reasonable steps” to alleviate any substantial disadvantage to that person, compared to non-disabled workers, as a result of any provision, criterion or practice (PCP) at work. “Substantial” disadvantage simply means “more than minor or trivial” (section 212(1), EA 10).



The duty requires the employer to engage in reasonable positive discrimination in favour of the disabled worker to remove barriers that make it harder to enter the workplace and contribute productively. The fact that the same support is not offered to non-disabled colleagues is irrelevant when it comes to deciding whether it is “reasonable”.





It is a practical rather than an abstract duty, owed to the disabled worker and to nobody else. For example, it is not owed to the carer or parent of a disabled person (Hainsworth v Ministry of Defence [2014] IRLR 728 CA). 


The duty is not owed until a disabled worker presents him or herself by applying for a job. The appropriateness of any adjustment will depend on their particular needs. The duty begins as soon as the employer is able to take reasonable steps to avoid the disadvantage. 


Obvious examples of PCPs conducive to reasonable adjustment include sickness absence and redundancy or discipline and grievance policies, but the concept of a PCP is very wide and can even include the decision to dismiss (Hibbert v The Home Office [2013] UKEAT 0138/13/2410). 



Tribunals must take a broad approach when deciding what amounts to a PCP, reflecting the protective purpose of the legislation. In Carreras v United First Partners Research [2018] EWCA Civ 323, an expectation or assumption that an employee would regularly work beyond his contract hours, with the result that he felt pressured to work late even though it disadvantaged his health was a PCP triggering the duty. It was enough that Carreras felt obliged to work late. It did not matter that there was no contractual obligation to do this, or that he was not being coerced by his employer into working extra hours.





“Steps” has a very wide meaning and can include any modification to the PCP that could remove a disadvantage (Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265). The only relevant question is whether the step is “reasonable”. Examples of common adjustments include:




• special interview arrangements;





• modifying recruitment selection procedures, for example, allowing more time to complete tests or adjusting testing methods; 





• reallocating duties;





• altering hours, or offering reduced hours;





• permitting working from home; 





• a phased return after sickness absence; 





• transferring a newly disabled person (or someone whose disability has worsened) to a more suitable existing vacancy;





• extra training;





• time off for medical treatment;





• relaxing workplace rules, for example, extra breaks or time away from the computer; 





• modifying sickness absence trigger points, for example, allowing for longer periods of absence by disabled workers before triggering a formal intervention;
and



• modifying redundancy selection or redeployment procedures (see Chapter 11). 





On its own, consultation is unlikely to be a reasonable adjustment (Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664). Even so, consultation is usually an important first step in making adjustments in most cases. In Tarbuck, a failure to provide support to a disabled employee in a job search was a breach of the duty.


Failure to carry out a disability risk assessment does not breach the duty to make reasonable adjustments on its own because simply carrying out the assessment does not remove any disadvantage. However, providing managerial support, mentoring or enhanced supervision, and monitoring work tasks and workload can all be reasonable adjustments (Watkins v HSBC Bank PLC [2018] UKEAT/0018/18/DA, EHRC Code, Para 6.33). 


There is more information about reasonable adjustments in the context of sickness absence and dismissal in Chapter 8.