Latest insights from our experts

Posted 14 May 2019
by Stephen Jennings

New survey highlights employer failings in making reasonable adjustments

Workplace environment

Results from the Great Big Workplace Adjustments Survey 2019, a comprehensive study of disability and long-term conditions conducted by Business Disability Forum, have just been published.

Key findings include:

  • 73 per cent of disabled respondents felt that adjustments made for them had made a positive difference in removing some of the barriers in the workplace
  • Only 44 per cent said that they had all the adjustments they needed
  • Just over half respondents with adjustments (55 per cent) had experienced difficulties with the process
  • almost three in ten (27 per cent) were waiting more than 6 months for their adjustments to be put in place (of which, 8 per cent had been waiting over two years).

Employers are legally required to make reasonable adjustments for disabled employees.

There are various barriers to reasonable adjustments being put in place promptly:

  • An employer may not be aware of a disability. The law imposes the obligation where an employer is aware, or could reasonably be expected to be aware, of a disability. Employers therefore need to be alive to pointers that may indicate a possible disability, such as a pattern of sickness absence or an employee struggling to do their job properly.
  • An employer may not know what adjustments to make. The legal obligation is to make adjustments which are reasonable, regardless of whether an employee has asked for them. There is therefore an onus on employers to engage with employees and to find out what they need. In some cases, this may involve a referral to occupational health for a medical view.
  • An employer may be deterred by the cost of adjustments, especially for a new employee who may not pass their probationary period. However alternative sources of funding (such as Access to Work) should be considered – and employers should bear in mind that if an employee fails a probationary period because of a lack of adjustments, that could encourage a claim.
  • Adjustments can take some time to set up or get right. A short delay is usually defensible – it may be necessary e.g. to commission a medical report, have specialist input and seek funding. However the longer the period of time that elapses, the more likely it is that an employee will be forced out – potentially leading to a claim.
  • An employer may be sceptical about how a particular requested adjustment (flexible working is a typical example) would work in practice and so may delay implementation. If in doubt though, it would be better to allow a trial period and to measure performance during the trial rather than deferring making a decision.

Basic steps employers should take include:

  1. Talking to the employee – what steps can the employer take to help? There may be something relatively simple which can be done (e.g. allowing some flexible working) which would make a big difference to the employee.
  2. Seeking medical advice from a qualified occupational health practitioner if necessary. This can help establish what adjustments are really necessary and suggestions may be made that neither employer nor employee had thought of.
  3. Acting promptly as soon as they become aware there is an issue. Required adjustments should be made without unreasonable delay. Managers should understand their obligations – e.g. a line manager should be alive to disability issues, rather than simply regarding them as a type of underperformance.
  4. Once adjustments are made, keeping them under review. The employee’s needs may change or particular adjustments may not prove effective – there should be an ongoing dialogue to ensure the employee is appropriately supported.

Ultimately the legal obligation is to do what is reasonable. This involves a necessary balancing exercise between the needs of employer and employee – and often some give and take on both sides. A claim for failure to make reasonable adjustments can be tricky to defend as an Employment Tribunal may have a very different view about what is reasonable than a cost-conscious and busy employer. If an employer gets it wrong, a claim can be expensive – compensation (often in the tens of thousands of pounds) is not subject to any cap and includes elements for financial loss and injury to feelings. There are also of course ancillary costs which are often overlooked, including the legal costs and management time spent defending a claim, damage to reputation, loss of a skilled employee and the costs of recruiting a new employee.

As with any claim, it is of course best avoided – and the best way to doing this is to listen to employees, make what adjustments you can and, for any you can’t, ensure you have a good reason.

If you would like further advice, contact our specialist employment team on 01392 207020 or e-mail employment@tozers.co.uk.

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About the author

Stephen Jennings

Partner and Solicitor

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients