Are you Reasonably Adjusted?

Are you Reasonably Adjusted?

The importance of making reasonable adjustments for those with a disability

In this, the first of three articles looking at aspects of equality legislation, we will consider reasonable adjustment and the need to ensure that those with a disability are able to undertake their employment with you or to access not only your premises but also the services your firm provides.

Introduction

So much of the law relating to discrimination is expressed as a negative – you must not discriminate against those with a particular characteristic – that it is easy to forget that there are positive duties contained within the legislation.  Reasonable adjustment is one of those positive duties.

Whilst the Equality Act 2010 (the Act) does provide that you must not act in such a way that would expose a person with a disability to direct or indirect discrimination, harassment or victimisation, it also contains a positive requirement.  That is, that it provides that you must make ‘reasonable adjustments’ so as to ensure that your workplace requirements or practices, and the manner in which you make your services available, do not disadvantage employees, potential employees, clients or potential clients who have a disability.  Thus there is a positive duty upon you and your firm to take steps to render your workplace and services accessible rather than simply not doing something that would discriminate.

What is a disability?

Before we look at what constitutes a reasonable adjustment, it will be useful to consider what constitutes a disability.  After all, if you are unaware of those for whom the adjustment is needed you may also not realise the particular nature of the adjustment that is required.

Section 6(1) of the Act provides that “A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”  Guidance on this can be found in Schedule 1 part 1 of the Act and there is further clarification in the Equality Act 2010 (Disability) Regulations 2010. Alternatively go to the Equality and Human Rights website at www.equalityhumanrights.com.

Thus, there are effectively three stages to determining whether a person has a disability for the purposes of the act:

  1. Does the person have a physical or mental impairment?
  2. Does that impairment have a substantial effect on the person’s ability to carry out normal day-to-day activities?
  3. Is that substantial effect long-term?

You will see from this definition that the potential range of circumstances that could be included are great and that it is not only those with obvious disabilities such as reduced mobility, impaired sight, hearing problems or mental impairment issues, but also those with less obvious symptoms including dyslexia, learning difficulties, back problems or depression.

Certain impairments are specifically excluded from the legislation, for example hay fever, tattoos and ornamental body piercing, and various anti-social personality disorders as well as addictions to alcohol, nicotine or other substances unless the addiction came about as the result of medical treatment or medically prescribed drugs.  However, disabilities that have been caused by an addiction, for example liver damage which is the result of alcoholism, does come within the legislation because the Act does not consider the cause of the impairment.

An important aspect of the definition is that the impairment has “a substantial effect on the person’s ability to carry out normal day-to-day activities”.  In other words, merely having a disability is not sufficient in itself if it does not prevent the person from carrying out normal day-to-day activities.  Thus, to require an adjustment the person must be prevented from doing that which most people can do easily including reading, writing, having a conversation, travelling by public transport, walking, seeing and generally taking part in ordinary day-to-day activities.

So if a person can walk, climb, sit, stand and travel on a bus perfectly well, the fact that they have a bad back that prevents them from lifting heavy objects would not be an impairment that would be likely to impact upon their ability to come to your offices to instruct you, and so no adjustment would be necessary.  However, if they were to be employed by you as a receptionist then, if part of the job required lifting heavy boxes of files, some form of adjustment would be necessary.

Finally, in looking at what constitutes a disability, there is the requirement that the substantial impairment has a long term effect.  Thus, the person’s impairment must be likely to persist for at least 12 months or the rest of the person’s life if less than 12 months.  That does not mean that at the time in question it has already lasted for 12 months, merely that it is likely to last for 12 months.

What is a Reasonable Adjustment?

So what is reasonable adjustment? The Equality Act recognises that often steps need to be taken in order to ensure that those who have a disability are able to access your workplace and/or the services that you offer in a way that is as close as possible to the way in which someone who did not have that disability would be able to access them.  In other words, the barriers to that workplace or those services for a disabled person need to be removed or overcome so far as is possible.

This may mean changing the way in which you employ people or the requirements you place upon them, removing physical barriers that prevent employees or clients from accessing your premises, changing the way, or offering alternatives to the way, in which you provide your services or offering additional support of some form to employees and clients with a disability.

It is important to realise that, when the duty to make a reasonable adjustment arises, it is a positive and proactive duty.  In practice this means that, so far as employees are concerned, you must make the appropriate adjustments where you are aware, or should reasonably have been aware, that your employee has a disability.  However, where the public or clients are concerned, you must anticipate the needs of those who have a disability and take such steps as are appropriate to remove barriers to access BEFORE they become a problem. In other words, you cannot wait until the person cannot access your services – you must think ahead, look at what barriers potentially exist and take such steps as are necessary to remove those barriers.

What is meant by reasonable?

Whilst this might seem like an onerous burden to place upon firms, many of whom may be small businesses or even one-person practices, the key word from the duty is “reasonable”.  In other words, the adjustments that you make only need to be ones that it would be reasonable for your firm to make given the circumstances.

Thus, when considering the adjustment that you need to make, you can give consideration to factors such as:

  • Your resources;
  • The size of your firm;
  • The cost of making that particular adjustment;
  • Whether it is practical and/or possible to make the adjustment;
  • The likely effectiveness of the adjustment;
  • The nature of the person’s disability; and
  • Whether there are other things you could do that might produce an equal or comparable benefit.

So, if you are a 50 partner practice with considerable resources and practising from relatively new central city premises then the extent to which you would be required, for example, to make changes to your offices so as to make them accessible to a client with mobility difficulties would be far greater than if you were a part-time, sole practitioner working from a room at the top of an old building in a small market town.

Not that the sole-practitioner would be absolved from the need to make adjustments at all.  Not all adjustments need to be physical.  Therefore, a reasonable adjustment for the sole practitioner might be to have arrangements in place to borrow someone else’s premises that are accessible or to make arrangements to visit at home those clients who would not be able to access the premises.

Also, because the term is “reasonable adjustment”, this also means that the adjustment in question does not need necessarily to be a physical adjustment such as altering premises or purchasing equipment or services – it can simply mean altering the way in which things are done to accommodate a disabled person. This could include:

  • allowing part of a disabled employee’s job to be undertaken by someone else in the firm,
  • allowing a disabled employee to undertake a different job that they are able to do,
  • changing a disabled employee’s working hours, working location or terms of employment
  • making arrangements to see a disabled client at home rather than in the office,
  • using a downstairs room to see clients with mobility issues,
  • writing to a client rather than emailing them if they problems using electronic equipment,
  • phoning a client rather than writing to them if they a visual impairment, or
  • taking extra time to explain things to clients with a learning difficulty.

It should also be borne in mind that the duty to make reasonable adjustments is a continuing duty and that you must keep the duty and the ways you are meeting the duty under regular review in light of your experience with any disabled employees or clients and in the light of your own resources and abilities to make adjustments.  Thus, that which was originally a reasonable step to take might no longer be sufficient if an employee’s disability becomes more severe or what was reasonable to do for clients when the firm started out might, if the firm’s resources increase or technological developments take place, cease to be adequate.

Who pays for the adjustment?

The basic position is that if the adjustment that you are making is a reasonable one then it is you that must pay for it. The firm is not permitted to request that a disabled client pay for the adjustment, even where it is made in response to a request from them, and neither can the disabled client be charged a higher amount or subjected to other terms that a person without a disability would not have been subjected to.

This also means for example that, even if you charge other clients for a home visit, if the reason you are seeing a disabled person at their home is because they cannot come to your office by reason of a disability, then that becomes a reasonable adjustment and you must not make a charge for it. However, if the client with the disability is accessing your services in the same way as all other clients  – for example you see all clients at their homes and make a charge for the cost of travel and time – then you can charge them the same as you charge other clients because they are not being put at a disadvantage as a result of their disability.

So far as employees are concerned, it is vital that the terms and conditions (including contractual benefits) are not disadvantageous to an employee with a disability to take account of any adjustment that has had to be made when employing them.  Thus, paying the employee with a disability less than you pay an employee without a disability for doing the same work to take account of costs you have incurred by way of reasonable adjustment would not be permitted.

Sickness and reasonable adjustment

Sickness and contractual sick pay is always a difficult area when it comes to reasonable adjustment.

If an employee is absent because of a disability-related sickness, then the employee must be paid the contractual sick pay, if any, to which they are entitled.  If the employee is not entitled to contractual sick pay, then they must usually be paid statutory sick pay if eligible.  However, the employer does not have to automatically extend contractual sick pay beyond the usual entitlement unless the reason for the extended period is because of the employer has failed to make, or delayed making a ‘reasonable adjustment’ so the employee can return to work.

Where sickness provisions become especially contentious is in relation to the so-called ‘absence triggers’ – that is to say, the number of days’ absence before the firm considers giving the employee a warning leading to possible dismissal unless the employee’s attendance at work improves.  It may be that in a particular given situation, amending the ‘absence triggers’ would be an appropriate reasonable adjustment for someone who was likely to be away from work for considerable periods – for example, because they have regularly to attend hospital for a particular course of treatment.  The appropriate action to take might be to readdress how the employee is paid – for example to look at putting the employee onto a reduced time contract.  However, the important point is still the word ‘reasonable’ and the employer might not be expected to make an adjustment that would be unreasonable.

Other ways to approach this could be to:

  • record disability related time off work separately from sickness-related absence – so that the disability time did not call into effect the “absence trigger”;
  • set an agreed amount of time that the employee could take for disability-related issues;
  • find other ways in which the employee could work and even make up their time – for example working from home in the evenings or weekends; or
  • look at part-time working or moving the employee to another role.

Making Adjustments in practice

What constitutes a reasonable adjustment will depend very much upon the circumstances of your firm and the particular disability for which you are making the adjustment.  There cannot, almost by definition, be a finite number of adjustments that must be made simply because there is a large number of combinations of circumstances and disabilities for which an adjustment must be made.

In all cases, however, there are three main ways in which an adjustment can be made:

  • changing how things are done
  • removing physical barriers, and
  • putting in place aids and services.

The extent to which you and your firm will need to implement any of these will depend essentially upon what it is reasonable for you to do.

i. changing how things are done

The first, and arguably the easiest and least expensive adjustment, is to change how you actually do things.  This is changes to what the legislation describes as a provision, criterion or practice.  What this means in practical terms is for the firm to look at whether it has rules, procedures or ways of doing things that present a barrier to those with a disability – either preventing those with a disability from accessing the firm’s services or creating a barrier for employees with a disability.

If such a barrier does exist, then the firm has to ask itself whether it should remove that practice or procedure completely or alternatively make changes to the practice.  The kind of questions that the firm needs to ask itself are:

  • could it be more flexible in from where services are provided? For example if the firm has a rule which prohibits staff from visiting clients at their home, could that rule be relaxed where the client has a disability?
  • could it be more flexible in prescribing how the service is provided – for example requiring all clients to communicate with the firm only in writing,
  • could it allow employees with a mobility problem to work from an office on the ground floor even though the department they work for is located elsewhere in the building?
  • could employees be allowed to work from home on days on which they have hospital appointments?
  • Is there a way in which communications from the firm to clients can, where necessary, be in an accessible format?

ii removing physical barriers

The second way in which changes can be made is the one that everyone immediately thinks of when the term reasonable adjustment is mentioned and that is the one which requires the making of changes to overcome those barriers which are created by physical features of the firm’s premises.

This is the kind of adjustment that has firms putting in slopes to their front door rather than steps so that those with mobility problems can access the premises or equipping downstairs toilets with handrails and easy-use taps.

The duty that the firm is under is, where it is reasonable to do so, to take steps to remove, alter, avoid or provide an alternative to physical features in the firm’s premises that form a barrier to access to those with a disability.

Strictly speaking, if it is reasonable for the firm to do so, it should always try and remove the physical barrier rather than simply making a change to the way in which things are done since the later may still not give the person with the disability access to the same level of service.  Hence the ramp, or the lift in place of the stairs since this will enable the client to access services in the same way as the non-disabled client, or allow an employee to work in a similar way to his or her colleagues.

It may, of course not be possible for the change to be made.  For example:

  • the firm may occupy premises that are listed and the listing will not permit the creation of a ramp outside the premises, or
  • the firm may be at the very top of a building with a narrow steep staircase which is not capable of being altered and there is no possibility of a lift being installed, or
  • the firm may simply not be able to afford to make the changes that would be required in order to make the premises accessible.

In these circumstances, the firm would have no option but to look at alternative methods for dealing with the problem – for example borrowing a nearby office that is accessible or agreeing to see clients at their home.

Bear in mind, also, that not all physical changes are to accommodate those with mobility issues.  Other disabilities exist which might prevent employees and clients with a disability from accessing or using your premises. These include those with impaired vision for whom contrasting paint around doorways or making sure that floors and walkways were kept clear of files, books, parcels etc. would make life easier and those with a hearing difficulty who may not be able to hear spoken instructions through a door intercom.

The exact nature of the changes that will need to be made will depend on the nature of the barriers to accessibility that exist and the firm needs to take a holistic approach and look at the building as a whole rather than looking at individual access problems in isolation.  For example, if the steps at the front of the building are too steep, would it be possible to move the access to the building a door off the car park at the rear.   Thus the firm needs to look at all aspects including stairways, kerbs, paving, parking areas, entrances, internal doors, routes through the building, routes out of the building (especially in an emergency), toilet and washroom facilities, waiting areas, lighting, ventilation, floor coverings, lifts and their controls, signs, furniture and furnishings, equipment, displays and where they are located, reception areas and privacy.

There is even a duty upon landlords to assist firms in making such changes. If for example, you occupy premises which require the landlord’s consent  to alterations, then that consent cannot be unreasonably withheld – even where the lease prohibits alterations although the landlord can place conditions upon that consent if it is reasonable to do so – for example requiring that the feature is changed back in the event that lease comes to an end.

Bear in mind also that this is not simply a requirement for clients.  If the firm has an employee who has mobility issues, for example, then steps must be taken to ensure that they are able to carry out their role without being at a disadvantage when compared with employees without that disability. Thus, if you are thinking of relocating a department to another part of the building you need to ask whether this will make it more difficult for those employees with a disability to do their job or if you are moving a department to a different building, you need to look at whether, for example, public transport links are adequate to accommodate an employee with sight impairment who cannot drive.

iii putting in place aids and services

The third way in which a firm may be required to make changes to accommodate the needs of those with a disability involves the provision of equipment or aids that would allow, or make it easier for, those with a disability to access your services.

The precise nature of the equipment or aid required will depend on the disability being addressed, the physical nature of the problem to be overcome, the services you are providing and the reasonableness of the adjustment. Whilst the obvious solution here is to think in terms of technological adjustments, such as portable induction loops or mobility equipment, equally it may be the provision of a person able to help – for example, a signer for those with hearing or speech impairment or some form of personal assistance such as someone to help lead them to and from the place where their meeting is to take place.

Deciding on the changes needed

Having thought through the adjustments in theory, the firm now needs to decide what specific adjustments need to, or can, be made.

There are a number of approaches that the firm can take to achieve this but possibly the simplest way is to contact local disability groups who represent either a range of disabilities (in relation to clients) or a specific disability (in the case of an employee) and to ask them what they think would be needed to make your services or workplace accessible.  Alternatively, or in the absence of these, you could:

Failing all of these methods, simply start by looking at your premises and thinking through the difficulties that those with a particular disability would have in access your services or, if you have an employee with a disability, the actual problems that they encounter or are likely to encounter.

Conclusion

To conclude, therefore, making a reasonable adjustment is not about waiting until a problem arises and then addressing it or doing the least you can get away with to provide access to services or employment – it is about thinking proactively of the problems that those with disabilities may have in accessing your services and taking steps to ensure that those problems are overcome.

It is not an optional extra for your practice – it is a requirement of the law and a requirement of the current code of conduct which requires, at Outcome O (2.3) that you “you make reasonable adjustments to ensure that disabled clients, employees or managers are not placed at a substantial disadvantage compared to those who are not disabled, and you do not pass on the costs of these adjustments to these disabled clients, employees or managers”.

Indeed, if you look at the requirements in a positive way and use it as a means of attracting as opposed to discouraging clients with a disability, you may even find that it is something which enhances your business.

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