- What is a failure to make reasonable adjustments?
- Who can make a claim for a failure to make reasonable adjustments?
- How long do I have to make such a claim?
- When does the duty arise to make reasonable adjustments arise?
- What is a substantial disadvantage?
- Who am I compared with?
- How is the duty to make reasonable adjustments breached?
- What is a reasonable adjustment?
The duty on employers to make reasonable adjustments is contained in s.21 of the Equality Act 2010. Should the employer fail to make the reasonable adjustments then this constitutes unlawful discrimination.
There are three circumstances (or “requirements”) where employers are compelled to make reasonable adjustments to the workplace:
- If a provision, criterion or practice exists which places you (the disabled person) at a substantial disadvantage as compared to a non-disabled person
- If a physical feature of the workplace (such as the lack of a lift or a long staircase) puts you at a substantial disadvantage as compared to a non-disabled person
- If the lack of an auxiliary aid puts you at a substantial disadvantage as compared to a non-disabled person
Disabled workers. Please see this page for a definition of disability for the purposes of the Equality Act 2010.
The time limit for a claim for a failure to make reasonable adjustments (as with workplace discrimination claims generally) is three months less one day from the date of the discriminatory action. However, there is often not a “specific” date for the failure – it is an ongoing action.
The employer’s duty to make reasonable adjustments arises when a particular disabled employee is substantially disadvantaged by one of the three circumstances listed above. It continues until the reasonable adjustments are made.
A “disadvantage” means that you’re put in a worse position than a non-disabled person in the workplace because one of the three circumstances listed above exists.
“Substantial” means a disadvantage which is more than trivial or minor. Most disadvantages will clear this hurdle.
A non-disabled person. This person can be either actual (a comparable person in your workplace) or hypothetical (a fictitious person who has the same attributes as you but is not disabled).
By a failure to make adjustments at all or by a failure to make such adjustments as are reasonable. The first failure is absolute (such as a failure to put a lift in the workplace if you’re paralysed and work on the seventh floor) whilst the second is one of degree – a dispute as to what adjustments were reasonable in the circumstances (such as the adjustment of a workplace practice but not its abolition).
The argument in such cases will revolve around what adjustments were “reasonable”. You will argue that the adjustments made weren’t reasonably sufficient whilst your employer will argue that they were. The test of reasonableness is an objective one – the Employment Tribunal will look at the particular facts of the matter and decide whether the adjustments made (if made at all) were reasonable. They will take into account the nature of the disadvantage suffered by you but will also take into account whether making an adjustment would have prevented the disadvantage and the cost of doing so (among others).
However, your employer should conduct a proper consultation with you as to what the problem is and what adjustments may be required.