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Making Reasonable Adjustments

What, When and How?

Making Reasonable Adjustments

07/09/2018

Managers and HR practitioners in the education workforce will be aware of the legal duty to make reasonable adjustments for people with disabilities, although they may never have had to deal with a practical case before. Agreeing and implementing a reasonable adjustment can be a straightforward task or a complex one depending on the nature of the disability, the work the employee performs and the size and resources of the employing organisation. In this article we revisit what the duty to make reasonable adjustments is all about, the types of adjustment that may or may not be reasonable and how to approach the task of discussing potential changes with an employee.

 

What is the duty to make ‘reasonable adjustments’?

The duty to make reasonable adjustments under the Equality Act 2010 arises where:

  • a “provision, criterion or practice” of the employer,
  • a physical feature of the premises, or
  • the absence of an auxiliary aid

puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage.

The purpose of the duty is to ensure that, where possible, a disabled person can participate in a job on the same basis as someone who is not disabled.

Although we refer in this article to ‘employees’, the definition of employment under the Equality Act 2010 is sufficiently broad to cover other contracts where the person is engaged to personally perform work (such as casuals). It also covers potential employees (i.e. job applicants) and ex-employees.

 

What is ‘reasonable’ in the context of making adjustments?

Employers are only required to take such steps as it is reasonable to have to take. The question of what is or is not ‘reasonable’ is probably the area that causes the most difficulties in practice. The size and type of organisation will have a bearing on reasonableness, but this is only one relevant factor and, as is often the case with employment matters, the question of reasonableness will ultimately be case specific. Even employees with similar disabilities may require different adjustments to be made. There are, however, several factors which are potentially relevant when assessing the reasonableness of a proposed adjustment. These include:

  • The size of your school/college or academy trust and the resources available to it
  • How practical the change(s) under consideration are
  • The effectiveness of the change(s) in avoiding the disadvantage to the employee
  • Cost, including whether any financial support is available
  • The employee’s length of service and whether the role is short-term or permanent
  • The impact of making the change(s) on the rest of the organisation (e.g. adverse impact on others or health and safety considerations).

You do not have to make any changes that will have no impact on reducing or removing the disadvantage. Neither are you expected to fundamentally change the nature of the job the employee performs, unless it is reasonable to do so (such as permanent redeployment into a different job, where one is available).

The reasonableness of adjustments can be considered in the context of how much assistance has already been offered to the employee, though the past provision of support - even if protracted or extensive - does not, of itself, mean that further adjustments will be unreasonable. It is a question of considering and balancing a range of factors.

See our table showing examples of possible reasonable adjustments

 

What is a ‘substantial’ disadvantage?

The duty to make reasonable adjustments applies when a disabled person is put at a substantial disadvantage, compared to those who are not disabled. ‘Substantial’ for these purposes should be considered anything which is “more than minor or trivial”. The threshold is therefore set relatively low.

 

What is a ‘provision, criterion or practice’?

The Equality and Human Rights Commission suggests that this can best be interpreted as “the way things are done”. This is clearly quite broad, but it will include both formal policies and more informal policies or practices that determine how things run in your school or college, such as working conditions, terms of the contract, employee benefits, the criteria with which people are appointed, promoted or given access to training. You can see examples of adjustments relating to a 'provision, criterion or practice' in our table showing possible reasonable adjustments.

 

What does ‘physical features’ cover?

This can be something structural about the building or its design (e.g. steps, exits, doorways, different levels), or it can be related to features or fixtures within the building (e.g. doors, toilets, lighting, shelving, furniture).

 

What are ‘auxiliary aids’ likely to include?

Auxiliary aids or auxiliary services are often in the form of equipment or people that, if provided, can help a disabled employee to participate in work. What might help an employee will very much be specific to the circumstances, but examples of aids would include accessible technology or modified equipment (e.g. ergonomic keyboard) and examples of services would include provision of a reader, sign language interpreter or support worker.

 

What if I don’t know whether an employee is disabled or not?

The duty to make reasonable adjustments applies only when you are aware, or ought reasonably to be aware, that someone you employ has a disability. Employers should therefore consider whether an employee may have a disability even if it has not been formally disclosed.

 

How do I find out what adjustments might be appropriate?

You may find out on appointment that an employee has a disability, for example through a pre-employment medical screening process. Alternatively it may be that an employee becomes disabled during their employment. Often, therefore, it will be through advice from the employee’s GP or your occupational health service, that suggestions for possible adjustments may be made. Although it is for the employer ultimately to determine what adjustments are reasonable for it to make, it is clearly in the best interests of all parties that the employee is involved in discussions about what would be most effective for them.

 

How do I talk to someone about their disability and what adjustments might be appropriate?

Some managers may find it difficult to discuss someone’s disability with them, being unsure of intruding on health-related problems or not wanting to say the wrong thing. Clearly you shouldn’t ask intrusive questions in this situation, you only need to know about the impact of their condition(s) on their ability to perform the role. You can also reassure them that information they give is only disclosed on a need-to-know basis and records will be kept confidential. Here are some tips for having this discussion with an employee:

  • Unless the adjustment(s) required are self-evident and straightforward, it can be helpful to prepare for the discussion by going through the job description or listing the core tasks of the role – you can discuss this with the employee in the meeting. If they have been in post for some while they may have more to add from personal experience.
  • Identify, in discussion with the employee, the areas of the role or what it is about the physical premises or ‘the way things are done’ which places the employee at a substantial disadvantage (remember a ‘substantial’ disadvantage simply means ‘more than trivial’) – you may have advice from your occupational health advisers or the employee’s GP to draw on here. If it’s a physical feature of the premises that is causing the disadvantage (such as access to the room where the employee works), this may affect every aspect of their role, in other cases it may only be one small element of the role that requires focus. Be open-minded, ask questions and don't make assumptions.
  • Discuss potential solutions to the disadvantages or problems you’ve identified. At this stage you’re identifying what could possibly be put in place to help, not committing to implementing them; depending on the nature of the changes, it may be necessary to agree these with senior managers or the board of governors, particularly if there are cost implications. The employee may not be able to offer suggestions as to what might help, however the employer must still continue to consider adjustments in the absence of suggestions. If an occupational health referral has not been made in such cases, now might be the best time to undertake one to ensure that some expert, external advice has been sought on possible options.
  • Except in simple cases, it will usually be necessary to investigate further the potential options, seeking further advice and obtaining approval as required. Advise the employee that you will be taking the matter forwards and will stay in touch about what you have discussed and what can be agreed.

 

What about reasonable adjustments for job applicants?

Although we’ve focussed in this article mainly on reasonable adjustments for employees, the same duty applies in respect of job applicants or those who have expressed an interest in applying for a job. Job applicants may, for example, need adjustments made to aspects of the application process, the interview and/or any selection activities that are planned. There should be an opportunity at every stage of the recruitment process for an applicant to request reasonable adjustments. The kind of reasonable adjustments that may be necessary to accommodate the needs of a job applicant will generally be proportionate to the fact that they are not (at least yet) an employee and (if coming on site) will only be on the premises for a short while. Clearly it will not be proportionate to make extensive and costly physical adjustments to the premises, for example, but if mobility is a problem for a candidate it may be necessary to consider relocating the interview or holding it by conference call instead.

 

Who pays for reasonable adjustments to be implemented?

Reasonable adjustments do not necessarily have to cost money to implement and there are many examples of changes that can be made at little or no expense, such as adjusting an employee’s working pattern, allowing extra time to complete a recruitment test or assigning a mentor.

Where there is associated expenditure the employer must pay for it, however the cost of making an adjustment can be taken into account when assessing whether the adjustment is reasonable to make.

You may have heard of a government scheme called Access to Work. Advice and support under this scheme is given directly to the employee so it is not a benefit which employers can access in their own right, however Access to Work will sometimes contribute to costs of adjustments which it would not be reasonable for the employer to pay for. The employee may therefore be able to get a grant through Access to Work even though, because of cost, the adjustment is not reasonable for the employer to make. See www.gov.uk/access-to-work for more information.

 

Are reasonable adjustments permanent?

The impact of an employee’s disability may change over time, meaning that reasonable adjustments may only need to be made on a temporary basis, or – if the employee’s disability worsens – they may need to be reassessed for effectiveness at appropriate intervals. Making reasonable adjustments isn’t just a one-off process of assessing need. There may be aspects of “the way things are done” at work for which the need for reasonable adjustments only arises sporadically and is therefore not pre-planned. In any case, it is worthwhile using review meetings with the employee as an opportunity to check how effectively the adjustments are working in practice.

 

What if a reasonable adjustment cannot be offered any more?

Occasionally there may be changes to the operation of the school/college that means a reasonable adjustment which was previously agreed can no longer be accommodated in the same way as before. This could, for example, be a physical change (such as moving premises) or a change to some other aspect of the working arrangements, such as a reorganisation of provision meaning that staff are required to be at work at certain times of the day. Clearly, reasonable adjustments which have previously been in place should not just be removed without consultation or notice. It will be necessary in such cases to have a meeting with the employee to discuss the proposed change, how this is likely to impact on the adjustments in place, and to discuss what alternative options might be suitable.

 

Do reasonable adjustments have to be documented?

There are no specific requirements around this. However it can be extremely unsettling for a disabled person if there is a change of line management or headteacher/principal and the new postholder has no knowledge or record of discussions or agreements that have been made to accommodate a disability. It is therefore always best to document on the personnel file what reasonable adjustments have been agreed, when and by whom, to avoid the potential for discrimination claims arising.

 

What are the consequences of a failure to make reasonable adjustments?

A failure to make reasonable adjustments (where the employer knows, or reasonably ought to have known, about the disability) is discrimination under the Equality Act 2010. An employee can therefore make a disability discrimination claim to an employment tribunal.

 

Why should I make reasonable adjustments?

Apart from the potential legal consequences of a failure to make reasonable adjustments there is a clear business case to be made for encouraging staff with disabilities into the education workforce. One-fifth of the UK working population has a disability of some kind. Failing to encourage people with disabilities into job vacancies, or failing to retain them once in post by not accommodating their needs, automatically reduces the available pool of applicants. The turnover of staff with disabilities on the whole tends to be lower as employees who have been supported to fulfil their potential at work are unsurprisingly often more committed to their employer.

All organisations benefit from having a diverse workforce with a mix of skills, ideas and personal backgrounds and it is important – both operationally and in terms of reputation – that the workforce of schools and education providers is reflective of the community they serve. Employees with long-term disabilities often possess particular qualities gained as a result of managing their condition and navigating through difficulties: resilience, inventiveness, problem-solving and determination are all useful assets in the education workforce.

 

  

Need more advice or support?

Don't forget our HR consultants are here to support you with considering and implementing reasonable adjustments. This could include advising you on an appropriate process, the question of 'reasonableness' and what to do if no reasonable adjustments can be identified. Customers of our comprehensive HR SLA can contact their attached consultant direct. For all other queries, get in touch with our HR Remote Service Desk on 0800 073 4444 option 3 or email EducationHR@StrictlyEducation4s.co.uk.