Reasonable adjustment failures (and ways they could have been resolved)

It’s a common misconception that ’reasonable adjustments’ are a change, process or offering that would be hugely troublesome, costly or disruptive to business. Most often, reasonable adjustments are slight and simple changes, that reduce the negative impact of someone’s disability in the workplace.

It’s also worth highlighting, (once again), that under the Equality Act 2010, employers are required to make reasonable adjustments for employees with disabilities, and failing to do so can lead to claims of discrimination.

Many employees often start by raising an informal complaint or filing a formal grievance, but many cases escalate to an employment tribunal. If the tribunal rules that an employer has not met their legal obligations, they could face compensation payouts that are uncapped- meaning they are, unlimited!

In this blog, we explore what constitutes reasonable adjustments and the potential consequences for employers who fail to make them, whilst looking at a few cases, and simple ways they may have been resolved.

CASE 1:

A supervisor at a care home had arthritis in her knees, which made the performance of physical tasks, increasingly difficult and painful. Her employer’s Occupational Health doctor confirmed she was considered disabled under the Equality Act and recommended changes to reduce her physical workload. Although the employer agreed, understaffing meant she still had to continue with the tasks, leading her to take sick leave. After a second Occupational Health review, her employer decided they couldn’t make the necessary changes due to their size and the employer claimed that they were not prepared to accommodate this adjustment and proceeded to dismiss her.

Result: The eventual settlement of the claim for £20,000 was made for loss of earnings and injury to feelings due to poor treatment, which exacerbated the woman’s disability.

What could the employer have done?

Here are some ideas of reasonable adjustments that could have been made in this instance:

• Avoiding Physical Tasks: All alternatives to the woman doing any heavy lifting should be made, with the employer looking extensively into whether lifting duties can be delegated to someone more suitable. If the care home is short staffed, why is this? Can they recruit- with a focus on sourcing someone capable of lifting? If not, is it possible for the employee to leave heavy lifting aspects of the job to be completed on a different shift?
• Assistive Equipment: is there a way that equipment, lifting aids, trolleys could reduce the need for manual handling? Could they explore the size of the items that need to be lifted, could they be reduced, or made smaller?
• Alternative Role or Modified Duties: If possible, are there less physically demanding jobs available, such as desk work, administration etc, that could be offered to the employee?

CASE 2:

An employee had worked for a large company for over 30 years and had a long-term mental health condition. She found commuting stressful, but she loved her job and had arranged to work one day a week at an office close to home.

In 2013, the company decided to reduce her team from 10 people to 3 and move the team to a new location, which would make her commute even more stressful. When she found out, she said she didn't want to work at the new location and preferred to be considered for a different role instead. Despite reminding the company about her mental health, they included her in the selection process and chose her as one of the top three employees, insisting she work at the new location.

Result: The company maintained their insistence that she had to take the new job even through a grievance appeal. After hearing the evidence, the Employment Tribunal concluded that the company should have allowed the employee to apply for jobs that were otherwise reserved for people seeking redeployment. The employee had been off from work sick during the period and was awarded loss of earnings and £6,000 for injury to feelings.

What could have the employer done?

• Rethink the restructure and process: The first and most obvious reasonable adjustment to consider would have been to modify the company’s restructure process whilst avoiding insisting that the woman relocates to the new site. Could she have been offered other alternatives, and allowed to apply for another role within the company, which was closer to home?
• Hybrid position: The company could have explored developing that position as a home working or even hybrid arrangement so that at least, the commute could be greatly reduced as a compromise (perhaps to once a week as per the old arrangement).
• Is office presence essential to her new role? – Many managers now work from home full time, with occasional travel into the main office. Could this have been explored more? Even though the tools we use today for hybrid working were in their infancy back then, (Zoom was started in 2011 for example), teleconferencing and email were still widely available and practical.
• Flexible hours: In addition to a hybrid offering, and arrangements above, could the employer offer flexibility in terms of start and finish times to ensure the employee wasn’t travelling during the worst rush hours?

CASE 3

A large bank was found to have failed in making reasonable adjustments for an employee who was suddenly diagnosed with Crohn's disease after having worked for the company for several years.

The employee was moved to a branch where the toilets were located far away from his desk, and others in a secure area (which he struggled accessing when with customers). This made it difficult for the employee to access them easily or quickly, causing significant anxiety. On two occasions, the employee had to leave the building to use nearby public toilets as an alternative.

The employee's manager raised concerns about underperformance, though the employee argued that their condition did not impact the quality of their work. In a resignation letter, the employee stated that limited toilet access was the main reason for leaving the job.

The employer argued that the inconvenience of not being able to access a toilet immediately could affect anyone, but that defence was ruled out, as this employee clearly faced greater difficulties due to their disability. The tribunal concluded that the employer failed to make reasonable adjustments and ruled in favour of the employee.

Result: The employee was awarded £8,000 for injury to feelings and a further £2000 in interest.

What could have the employer done?

1. Make access to facilities easier: The employer should have made a better attempt to relocate the employee to an area of the building that offered easy access to a lavatory. If the secure area needed when with customers presented problems, could the security be lowered for this particular staff member make entrance easier?
2. Offer flexible micro breaks- The employee could have been offered micro breaks throughout the day, (when needed without any delay or interruption), and other allowances regarding time management to best manage his disability
3. Consider the customer interaction element of his job- The employer could discuss the duties of the employees role, and give him the option/flexibility to step away from customer-facing tasks when necessary (or permanently if possible/ or if desired).
4. Consider adding toilet where needed – In the tribunal, the employer stated that the inconvenience would affect anyone in this job- so should the addition of a nearer toilet be something the employer should consider?

Very often, tribunals similar to the above, could have been easily avoided. Sadly, grievances escalate and are dealt with poorly due to a workplace’s culture, and the lack of understanding and knowledge of disability. And, if a poor culture exists, it’s likely staff are not disability aware and therefore have had little or no training and the result of this is that managers -and those responsible for implementing reasonable adjustments – fail.  

Once staff are trained and have a deeper knowledge, understanding, level of empathy and experience of disability, they will be better managers. They will be better skilled in conversations around reasonable adjustment, making compromise and always have an open door regarding such issues, making them better able to support workers with disabilities.

If you consider the potential cost of a discrimination case, and the fact that the average cost of making a reasonable workplace adjustment is just £75- that alone presents a good case for training your workforce to embrace and support colleagues with a disability.

If you are looking to improve your workplace culture, and best support your staff with disabilities- enquire about our training and consultation packages- today. info@bascule.com