IER Be reasonable? Are employers meeting their obligations on disability 19 th November 2014

Introduction  Important to consider duty on employers to make reasonable adjustments in light of recent research into disabled workers  Two revealing research projects –‘Fulfilling potential’ – DWP research February 2013 –‘Employer disability practice in Britain’ – K Hoque, N Bacon D Parr  Impact of austerity and employers practices

Overview  Duty to make reasonable adjustments: ‾Who does it apply to ? ‾When does it apply? ‾What is the duty? ‾How is it applied in practice? ‾Action points

Who does the duty apply to?  Workers who have a disability as defined: A physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to do normal day to day activities  Includes: job applicants and prospective applicants; workers in employment including contract workers and after employment has ended;  Does not apply to those who are associated with someone who has a disability - Hainsworth v Ministry of Defence [2014] EWCA Civ 763  Employer must know or ought reasonably to know

When does the duty apply?  Before employment starts  During employment - NCH Scotland v McHugh UKEAT0010/06 London Underground v Vuoto UKEAT 0123/09

What is the duty to make a reasonable adjustment?  Where there is a PCP, physical feature, failure to provide and auxiliary aid;  Which puts the disabled person at a substantial disadvantage in comparison to those who are not disabled;  The employer is required to take such steps as is reasonable to have to take to avoid to the disadvantage or provide the auxiliary aid

What amounts to a PCP?  Should be widely construed  Does not necessarily have to apply to the disabled person Roberts v NW Ambulance Service UKEAT 0085/11  Must put the disabled worker to a substantial disadvantage: –RBOS v Ashton [2011] ICR 632 –Griffiths v DWP UKEAT/0372/13

What steps is it reasonable for the employer to take? Consider:  Extent to which the step would prevent the disadvantage:  The extent to which it is practicable  Financial and other costs incurred by the employer and the extent to which the business would be disrupted if the step was taken  The extent of the employer’s financial and other resources:  The availability of financial or other assistance;  The nature of the activity and the size of the employer

Reasonableness of the adjustment  Burden is on the employer not the disabled worker to make the adjustment; Environment Agency v Donnelly UKEAT/0194/13/  The employer must bear the cost not the disabled worker s. 20(7) EqA  An ongoing duty

Points to check  Identify the PCP  Does it put the disabled worker at a substantial disadvantage?  Consider the impact of the PCP on non-disabled workers  Does the adjustment have a prospect of removing the disadvantage?  Is it reasonable taking into account its effectiveness, if it is practicable and one the employer can afford having regard to other resources such as Access to work

Conclusion  Further information -  LELR online