Only “reasonable” adjustments are required

There is no requirement to make an adjustment that is not “reasonable”. For example, it was not reasonable to slot a redundant disabled employee into a new role for which she could not meet the core criteria, even with training (Wade v Sheffield Hallam University [2013] UKEAT/0194/12/LA). Neither was it reasonable to adjust the core criteria for a role to take account of an employee’s disability (Lancaster v TBWA Manchester [2011] UKEAT/0460/10), or to red circle (i.e. protect) the pay of a disabled worker when transferred to a new role by agreement to accommodate the disability (British Gas Services v McCaull [2001] IRLR 60).

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 an absence management procedure where this would have caused disruption and resentment among co-workers.

An adjustment will not be reasonable if it is not aimed at helping the employee 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). Neither does it extend to providing rehabilitative care such as a career break or light duties, where these are not aimed at supporting a return to work (Salford NHS Primary Care Trust v Smith [2011] UKEAT/0507/10). An adjustment will not be reasonable if it will not help remove the disadvantage caused by the PCP (see, for example, Secretary of State for Work and Pensions (Job Centre Plus) v Higgins [2013] UKEAT/0579/12/DM).

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, if made, 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 (see Cordell v The Foreign and Commonwealth Office [2011] UKEAT/0016/11/SM);

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

• the type and size of the employer.

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, where the sessions were recommended by the expert whose advice the employer had sought. The sessions would have helped support a successful return to work. The employer in this case also breached the reasonable adjustments duty by failing to discuss the expert recommendations with the employee. This useful case reinforces the importance of the on-going duty to consult with disabled workers and their reps, as 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.