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> Duty to Make Reasonable Adjustments
Right to Equal Treatment: Duty to Make Reasonable Adjustments
The DDA imposes a duty to make reasonable adjustments to a practice, policy or procedure related to the working environment. The duty to make reasonable adjustments arises where a provision, criterion or practice places a disabled person at a substantial disadvantage compared to persons who are not disabled (S. 4A(1) DDA.). Examples of what a reasonable adjustment might be include physical alterations to the workplace as well as changes in work practices. The duty to make reasonable adjustments is not limited to employers, it is relevant to trade unions and employers’ associations as well as users of contract workers.
The duty will not arise if the employer does not know that the person has a disability and is likely to be placed at a substantial disadvantage as compared to persons who are not disabled (s. 4A(3)(b)). Furthermore, the duty requires an employer to take such steps as are ‘reasonable’ in the individual circumstances of the particular case. This is an objective test. It is not necessary that any adjustment is guaranteed to work, only that there is a substantial possibility that it will. However, the DRC’s code of practice suggests a degree of positive enquiry is required from the employer. Thus an employer must do all he or she could reasonably be expected to do to inform him or herself of the position.
The DDA provides some illustrations of what steps might be taken by way of a reasonable adjustment. These include allocating some of your duties to another person, transferring you to fill an existing vacancy; altering your working hours and permitting absences from work for rehabilitation, assessment or treatment.
The DDA provides a list of factors that will be taken into account in assessing whether adjustment would have been reasonable for the employer to make. These are:
The relevant code of practice also states that providers of employment services should consider the need for reasonable adjustments in advance of being approached by a disabled person. Carrying out an access audit of their premises and services (including websites) is likely to assist service providers in this regard. The employer will not be able to justify a failure to make reasonable adjustments, but the duty will only be breached if the requirement is ‘reasonable’.
The duty will not arise if the employer does not know that the person has a disability and is likely to be placed at a substantial disadvantage as compared to persons who are not disabled (s. 4A(3)(b)). Furthermore, the duty requires an employer to take such steps as are ‘reasonable’ in the individual circumstances of the particular case. This is an objective test. It is not necessary that any adjustment is guaranteed to work, only that there is a substantial possibility that it will. However, the DRC’s code of practice suggests a degree of positive enquiry is required from the employer. Thus an employer must do all he or she could reasonably be expected to do to inform him or herself of the position.
The DDA provides some illustrations of what steps might be taken by way of a reasonable adjustment. These include allocating some of your duties to another person, transferring you to fill an existing vacancy; altering your working hours and permitting absences from work for rehabilitation, assessment or treatment.
The DDA provides a list of factors that will be taken into account in assessing whether adjustment would have been reasonable for the employer to make. These are:
- The extent to which the step would prevent the effect in question.
- The extent to which it is practicable for the employer to take the step.
- The financial and other costs which would be incurred by the employer in taking the step and the extent to which it would disrupt any of the employer’s activities.
- The extent of the employer’s financial and other resources.
- The availability to the employer of financial or other assistance with respect to taking such a step.
The relevant code of practice also states that providers of employment services should consider the need for reasonable adjustments in advance of being approached by a disabled person. Carrying out an access audit of their premises and services (including websites) is likely to assist service providers in this regard. The employer will not be able to justify a failure to make reasonable adjustments, but the duty will only be breached if the requirement is ‘reasonable’.
