The Government reports that one in five of the working-age population in the UK are classed as disabled, yet a TUC poll last year highlighted that the employment gap between disabled and non-disabled workers was 28% prior to the pandemic and that 30% of disabled people felt that they had been treated unfairly at work over the last two years.
However, a lasting impact of the pandemic has been the realisation by many employers that much of the work formerly carried out in offices can effectively be done from home, using advanced technology which has already transformed the world of work over the last two years.
These technology developments, if used productively by employers, could potentially revolutionise the position of many disabled people (with both visible and non-visible disabilities), who may now be able to take on roles which would previously have been inaccessible.
It is possible therefore that the pandemic has fundamentally altered the legal requirement on employers to make “reasonable adjustments” for disabled employees. This article suggests adjustments that we think employers should now consider, to encourage the recruitment and retention of disabled employees.
1. What is the scope of the legal duty to make reasonable adjustments?
Under the Equality Act 2010, UK employers have a legal duty to make reasonable adjustments to remove, reduce or prevent the substantial disadvantage a disabled person experiences, in comparison to non-disabled employees. The disadvantage might come from:
a provision, criterion or practice of the employer (e.g. the requirement to work in an office full-time);
a physical feature of the employer’s premises (e.g. difficulty gaining access to the office); or
a failure to provide an auxiliary aid (e.g. additional software or a sign language interpreter).
This duty applies to disabled job applicants as well as existing employees, and recent caselaw has reconfirmed the importance of considering adjustments during the recruitment process (such as providing an auxiliary aid or other assistance with the completion of an online application form). The duty begins as soon as the employer knows or could reasonably be expected to know that a person is disabled.
However, setting aside individual disabilities, we believe the pandemic has demonstrated the importance of taking a holistic approach when it comes to reasonable adjustments.
At the moment, many office-based employees are likely to be successfully performing their role from home following the Government’s shift to “Plan B” measures in December. With the working from home guidance now set to end from 27 January onwards, employers may find themselves faced with reluctant returners, for whom working on a hybrid basis or fully from the office holds little appeal.
If any such employees are also disabled, it may be increasingly difficult for an employer to justify why a permanent adjustment to homeworking cannot be accommodated. That is particularly the case if there has been evidence of increased productivity and efficiency during the time spent working from home.
By way of practical example, a wheelchair user who cannot easily commute across London, or access an office in an old building with no lift, would clearly benefit from the ability to be a homeworker. Similarly, someone with a mental health condition, or hearing impairment, who struggles to work in a noisy communal environment may well be more productive in their home office.
As such, we suggest that now is a good time to generally re-assess the range of adjustments that employers can reasonably be expected to make, both in the context of recruiting disabled job candidates and the ongoing employment of disabled employees. There are several advantages to approaching this in a proactive way, including:
An increased likelihood of remaining compliant with disability obligations under the Equality Act 2010.
Minimising the risk of uncapped compensation due to successful disability discrimination claims.
Providing much needed opportunities for disabled people to access a wider range of jobs and increasing the pool of potential new recruits available to employers. Vacancies can be advertised in a way that attracts disabled candidates and demonstrates the support available to them should they choose to apply.
Early preparation for any mandatory disability workforce reporting which the Government may seek to introduce, following its consultation on this subject in December 2021.
An employer’s reputation and workplace culture are both likely to be boosted by positive steps towards a more diverse and inclusive workplace.
2. What does “reasonable” mean in practice?
When it comes to assessing reasonableness, the relevant factors for a disabled employee are likely to include: the nature of their disability; recommendations from medical evidence (including any occupational health report); and the nature of the employee’s particular role.
However, the employee’s view on what would be reasonable may not necessarily align with that of their employer. The duty to make a proposed adjustment will only arise if it is reasonable in the circumstances, which includes consideration of the size of the employer, their financial and administrative resources, and whether the adjustment will alleviate the disadvantage suffered by the employee.
3. What adjustments should be considered?
Various resources provide guidance and practical examples of adjustments for employers to consider, such as the Equality and Human Rights Commission’s Code of Practice for Employers and guide to workplace adjustments; and the guidance from ACAS on Neurodiversity in the workplace.
Common examples include:
adjustments to working hours, duties, and location;
physical adjustments to the office environment e.g. dedicated quiet areas and a redesign to take account of different sensory needs;
altering internal HR processes, such as performance appraisals and/or grievance procedures;
acquiring or modifying equipment e.g. adjustable desks, noise cancelling headphones, trackballs instead of a computer mouse, and key guards with solid key templates for those with limited fine motor control; and
additional supervision or support.
Many of these steps will be familiar to employers, but the array of new technology available to aid workplace accessibility and efficiency is also equally important.
The Ministry of Justice recently found itself in the firing line in this regard, when it failed to provide a dyslexic judge with the reasonable adjustment of voice-recognition software and training to assist her to conduct her judicial business more effectively.
Taking the example of visually impaired employees, there have been extensive software developments with which employers could engage, such as:
Assistive technology in work smartphones e.g. Siri and Google Assistant;
The Job Access With Speech (JAWS) screen reader, which provides speech and Braille output for a wide range of computer applications that employees may use for work; and
Screen magnification tools which increase text size, menus, icons e.g. ZoomText Magnifier/Reader.
Similarly, deaf employees can benefit from developments on major meeting platforms such as Zoom and Google Meet, where live audio captioning can enable participation in team meetings and avoid the issue of “Zoom fatigue” that can come from online lip reading of colleagues.
External support can also be sought from companies such as InterpretersLive! which delivers real time access to qualified British Sign Language interpreters through encrypted video platforms.
What is reasonable for one disabled employee or job applicant may not be reasonable for the next, therefore a tailored assessment on an individual basis remains important.
However, keeping an eye out for developing technology and an open mind about the possible adjustments that could benefit employees and the business (within the boundaries of available budget and resources) should stand employers in good stead.
In turn, employers are likely to find themselves on the right side of the Equality Act 2010 and in a better position to fill vacancies from a more diverse group of candidates.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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