When is an adjustment “reasonable”?


The duty to make reasonable adjustments is a practical duty. Only “reasonable” adjustments are required. This is very important. The duty must 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” (that is, 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, what is reasonable always depends on context. For example, there is no blanket rule that pay protection is never a reasonable adjustment. 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 of an engineer who had to take a lower skilled role due to his disability because G4S had been paying the higher rate for some time, leading the claimant to believe this was a long-term arrangement he could rely on.
In this case, the EAT pointed out that many reasonable adjustments involve a potential cost to the employer. Some may be direct, such as paying for support to keep an employee in their existing role, while others are more indirect, such as protecting a disabled worker’s pay in a less skilled role so that no extra 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. 





An employer cannot pass on the cost of making adjustments to the employee without a clear written agreement allowing this.




Where changes cost more than the employer can reasonably be expected to pay given their size and resources, there is help via the Access to Work scheme. Details are available on the GOV.UK web portal (https://www.gov.uk/access-to-work). 


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). One exception is where the absence is prolonged by the employer’s failure to make reasonable adjustments (Nottinghamshire County Court v Meikle [2004] IRLR 70).





A key question when deciding whether an adjustment is “reasonable” is whether there a good chance that it will help the disabled worker return to, or continue with their work. An adjustment that is unlikely to achieve this 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). 





When assessing whether an adjustment is reasonable, 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, in particular, 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, and the availability of outside support, such as Access to Work; and





• the type and size of the employer.





If an adjustment is reasonable, the employer must make it.



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