Disability discrimination is unlawful and occurs when a person is treated less favourably because of their disability. Below, we will provide more information on disability discrimination legal services, reasonable adjustments in the context of disability discrimination and identify when a business may need to make them.
For more legal advice, speak to our disability discrimination solicitor.
Taking steps to identify disability
In the context of disability discrimination, a business is intended to ensure that disabled employees and job applicants do not face a substantial disadvantage compared with their non-disabled colleagues because of their disability.
However, a business is not expected to make reasonable adjustments if it does not know, or could not reasonably be expected to know, that the disabled person has a disability and is likely to be placed at a substantial disadvantage.
Reasonable steps should be taken to put a system in place to help the business identify whether individuals are disabled and at a substantial disadvantage. If a business should have known about a disability, for example, if it would have been discovered from an occupational health assessment, then the duty to make reasonable adjustments will arise, or else the business might be faced with disability discrimination claims.
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What are “reasonable” adjustments?
Reasonable adjustments are changes that an employer can make to their premises, procedures or policies to accommodate disabled people.
Although each situation will be different, there are a number of factors which may be taken into consideration when deciding if the steps a business has taken were “reasonable”, including:
- Whether the adjustment would actually solve the disadvantage identified.
- The practicality of the adjustment.
- The impact of the adjustment on the business as a whole.
- The financial and other costs of making the adjustment.
- The size of the business.
It is good practice for the business to ask the disabled person about possible adjustments. It is also advisable to agree on any proposed adjustments with that person before they are made.
A business can be held liable for disability discrimination if it fails to make reasonable adjustments for a disabled employee.
For more legal advice on disability discrimination, contact our employment law specialist, Neil Largan.
When does the duty to make reasonable adjustments arise?
The duty can arise in three circumstances:
- Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
- Where a physical feature puts a disabled person at a substantial disadvantage in comparison with individuals who are not disabled.
- Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with individuals who are not disabled.
What is a substantial disadvantage?
Discrimination legislation describes “substantial” as “more than minor or trivial”. It is a relatively low threshold and, therefore, an employment tribunal is likely to find it easy to conclude that a claimant suffered a substantial disadvantage. Whether an employee is placed at a substantial disadvantage depends on the individual facts of the situation.
What is an auxiliary aid?
An auxiliary aid is something which provides support or assistance to a disabled person (for example, a specialist piece of equipment, such as an adapted keyboard or text-to-speech software).
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What are some adjustments a business may be required to make?
There are a variety of reasonable adjustments that a business may be required to make to avoid disability discrimination claims which will obviously depend on the facts of the individual situation. However, examples include:
- Making adjustments to premises (for example, by widening a doorway or providing a ramp).
- Providing information in accessible formats (for example, producing instructions and manuals in Braille or on audio tape).
- Reinstatement (for example, reinstating an employee who resigned while depressed).
- Transferring a disabled employee to a new role (for example, moving them to fill an existing vacancy).
- Altering the disabled person’s hours of working or training (for example, permitting part-time working or different working hours to avoid the need to travel in the rush hour).
What is a physical feature?
The physical feature must be part of the business premises for the duty to arise. For example:
- Parking areas.
- Toilet and washing facilities.
- Building entrances and exits.
- Furniture and temporary or movable items.
What are the penalties for failing to comply with disability discrimination laws?
The Equality Act 2010 prohibits discrimination on grounds of disability. It is unlawful for employers to discriminate against disabled job applicants and employees in the recruitment process, during employment, or when considering their application for promotion.
Discrimination legislation imposes a duty on businesses to make reasonable adjustments to premises or working practices where a disabled job applicant or employee is placed at a substantial disadvantage. Failing to comply with this duty is a form of disability discrimination.
There is no limit to the amount of compensation that can be awarded for a successful disability discrimination claim, this is why businesses need to take all reasonable steps to ensure compliance. Failure to comply with the discrimination legislation means that a business could face prosecution by local authorities or an employment tribunal. The business may also be liable for damages from an employee.
If a business fails to comply with the law in relation to disability discrimination, it may need to:
- Pay compensation to the employee
- Reinstate the employee (if an employee was unfairly dismissed).
What is a provision, criterion, or practice?
The phrase “provision, criterion or practice” is wide ranging and includes:
- Recruitment criteria.
- Provisions in the employment contract.
- Employment policies.
- Informal practices.
For more information on our disability discrimination legal services, speak with our expert team of disability solicitors today.