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More Equal Than Others?

It is socially and morally desirable to encourage employers to employ people with disabilities so The Equality Act 2010, which replaced the Disability Discrimination Act, places a requirement upon employers to make reasonable adjustments for disabled employees. Reasonable adjustments can take a variety of forms and are tailored to the specific circumstances. Typically, they include allowing an employee to reduce his hours for a period of time or permanently; change some work activities or move the employee to a new type of work altogether; allow a different venue, for example, working from home; provisions of equipment; allowing time off for counselling or therapy.

What is reasonable will depend on the circumstances. If it is not reasonable, the employer is entitled to refuse. It’s always helpful to seek guidance from case law and two recent examples of reasonable adjustments suggested by the employee and refused by the employer were upheld in the courts.

In one case (Secretary of State for Work and Pensions v Higgins) the employee had long service with his employer. He was absent from work for a long time on grounds of ill health and eventually gave his employer a medical certificate which recommended a phased return to work on altered hours for three months. The employee suggested a phased return over a period of up to 26 weeks. His employer proposed it should be over 13 weeks. Mr Higgins refused to return to work unless it was the extended version. He was dismissed in consequence of his refusal and complained that the employer had failed to make reasonable adjustments.

In the employment tribunal, the judge agreed that by failing to consider the extended return to work plan and found the employer had breached its duty to make reasonable adjustments.

On appeal, the Employment Appeal Tribunal overturned the decision. It noted that employers are often presented with medical notes which last a certain duration. The court did not consider that it is always necessary for the employer to give an explicit guarantee to extend this period. If at the end of the period, an employee continues to suffer a substantial disadvantage, then although the duty to make reasonable adjustments will still be applicable, it will be judged on the circumstances relevant at that particular time.

Some years ago, in Archibald v Fife Council, the House of Lords agreed that it was a reasonable adjustment to give an employee who had become disabled during her period of employment a vacant role that she could do, even if she wasn’t the best candidate for the job. More recently a disabled employee argued that it would be a reasonable adjustment for her to be given a vacant role, waiving the usual selection process. The role in question was not the same from which she had been made redundant and contained more manageable tasks.

Ms Wade had a disability and when her role was abolished during restructuring she was put on garden leave. A new role became available and she was considered for it. She was unsuccessful because she didn’t have most of the essential skills to carry it out, but she complained to the tribunal, citing the Archibald case. She said that her employer, Sheffield Hallam University, had not made reasonable adjustments. She was unsuccessful. The court did not accept that it was a reasonable adjustment to exempt Ms Wade from the essential requirements of the job.

Each case will turn on its own facts, so if you’re unsure about what constitutes a reasonable adjustment, get advice.

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