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equalitytalk.org.uk

How Equality Act 2010 applies to adult communication impairments in Britain

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Reasonable adjustments

How employment is set up, or how services or education are provided, is often not designed to meet the needs of disabled people. The duty to make reasonable adjustments is very important in making these accessible.

Key points

  • The duty to make reasonable adjustments is perhaps the most important right for disabled people.
  • It may be easier to show this duty has been breached:
    • For example, it may be easier to show a recruitment process was not adjusted, than to show prima facie why one was not recruited for a job.
  • For the duty to apply, the disabled person (or disabled people) must be placed at a 'substantial disadvantage'. 'Substantial' means only 'more than minor or trivial'.
  • What is 'reasonable' will depend on all the facts.

The reasonable adjustment duty - three types

The reasonable adjustment duty has three heads. A feature of them all is the disabled person (or disabled people generally) being at a "substantial disadvantage". Note that "substantial" means only "more than minor or trivial" (s.212(1) EqA). As regards employment, one looks at substantial disadvantage for the particular disabled person. As regards service providers and education, one usually looks at substantial disadvantage for disabled people generally - see below 'Anticipatory or not'.

The wording of the reasonable adjustment duty set out below is not necessarily what actually applies in a particular case. The Equality Act adapts the wording for different situations.

1. Provision, criterion or practice

This is the most usual head under which a person with a communciation disorder will claim a reasonable adjustment.

Where a provision, criterion or practice of an employer, service provider etc puts a disabled person (or sometimes disabled people generally) at a substantial disadvantage in comparison with persons who are not disabled, the employer, service provider etc must take such steps as it is reasonable to have to take to avoid the disadvantage (s.20(3) EqA).

The Employment Code of Practice para 6.10 says the phrase 'provision, criterion or practice' "should be interpreted widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions..." (See also Services Code of Practice para 5.6).

S.20(6) EqA says expressly that where this duty relates to the provision of information, the steps which it is reasonable for the employer, service provider etc to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

Example: longer time for job interview
A longer time is allowed for an interview with someone with a communication disability. It might be at the end of a session so that there is time for it to run on without delaying a subsequent interviewee.

Example: alternatives to the telephone for customers
A company normally insists that customers must sort out an issue over the telephone. It may be a reasonable adjustment for it to be done in an alternative way, such as by email or a face-to-face conversation, if a communication disability makes phone calls difficult.

Case study: synthetic voice
A bank refuses to deal on the telephone with customers who use a synthesised voice (speech produced by a communication device). This may be a breach of the duty to make reasonable adjustments - or for example discrimination arising from disability.

2. Physical features

Where a physical feature puts a disabled person (or sometimes disabled people generally) at a substantial disadvantage in comparison with persons who are not disabled, there is a duty on an employer, service provider etc to take such steps as it is reasonable to have to take to avoid the disadvantage.

What is a 'physical feature' is defined widely. As well as steps, doorways etc, it includes for example fittings, furniture or equipment on premises, or a 'physical element or quality'. (s.20(4)(9)(10) EqA). This head of the reasonable adjustment duty does not apply to recruitment (EqA Sch 8 para 2(4)).

Physical features are more obviously relevant to people such as wheelchair users and those with a visual impairment. However they could be relevant to communication disorders as regards open plan offices.

Case: partition reducing noise levels
A claimant with vocal nodules complained about the taking down of a partition separating her office from the stock control room. She considered that the increased noise levels would have a substantial adverse effect upon her health.
SCA Packaging v Boyle (link to stammeringlaw.org.uk), House of Lords, July 2009. (The House of Lords decision concerned her appeal - which she won - on the issue of having a disability, rather than the reasonable adjustment itself.)

3. Auxiliary aids

Where a disabled person (or sometimes disabled people generally) would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled, the employer, service provider etc must take such steps as it is reasonable to have to take to provide the auxiliary aid (s.20(5) EqA). 'Auxiliary aid' includes an auxiliary service (s.20(11) EqA).

Again s.20(6) EqA above applies, on providing information in an accessible format.

According to para 6.33 of the Employment Code of Practice, the reasonable adjustment duty does not include providing equipment - such as a wheelchair - which the person needs for personal purposes in any event. However, the boundaries of this are unclear.

What is reasonable?

Employers, service providers, education providers and others only have to take steps which it is "reasonable" for them to have to take. The Codes of Practice set out some relevant issues in deciding how far a step is reasonable. The following are taken from the Employment Code of Practice para 6.28, but those in the Services Code of Practice para 7.30 are similar to a large extent:

  • whether taking a step would be effective in preventing the substantial disadvantage, e.g. how far would the step help the person to communicate or understand effectively;
  • the practicability of the step;
  • the financial and other costs of making the adjustment, and the extent of any disruption caused;
  • the availability to an employer of financial or other assistance, for example a grant or advice through Access to Work (direct.gov.uk: Access to Work). In practice adjustments will often cost nothing.
  • the extent of the employer's financial or other resources;
  • the type and size of the employer.

From Statutory Code of Practice
"Effective and practicable adjustments for disabled workers often involve little or no cost or disruption and are therefore very likely to be reasonable for an employer to have to make. Even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms - for example, compared with the costs of recruiting and training a new member of staff - and so may still be a reasonable adjustment to have to make."
Employment Code of Practice para 6.25.

There is guidance from the Equality and Human Rights Commission (EHRC): What is meant by reasonable (link to EHRC website).

In the event of dispute, it would be for the Employment Tribunal or other court to decide what it is reasonable for the employer or provider to have to do.

Some exceptions

Employers - 'knowledge' defence

In the area of employment, there may be a defence if the employer did not know - and could not have reasonably been expected to know - of the disability or the substantial disadvantage. See Knowledge of disability.

In the case of a job applicant (or potential applicant) the employer also has a defence if it does not know, and could not reasonably be expected to know, that the disabled person is or may be an applicant for the work (EqA Sch 8 para 20).

Service providers - nature of service

A service provider does not have to take steps which would fundamentally alter the nature of the service, or of the service provider's trade, business or profession (EqA Sch 2 para 2(7)).

Other exceptions - eg transport

There are some other specific exceptions to the duty to make reasonable adjustments. The largest example relates to transport providers, mainly ships and aircraft (Transport (link to stammeringlaw.org.uk)).

Anticipatory or not

There is a distinction between the reasonable adjustment duty for employment on the one hand, and provision of services and (mostly) education on the other hand.

Services and education - duty is anticipatory

In provision of services and education, the duty to make reasonable adjustments is usually 'anticipatory'. In other words, service providers owe the duties to disabled people as a whole, and should therefore consider and take steps to ensure the accessibility of their services in advance of disabled customers or students notifying them of problems. It may therefore be reasonable for a provider to do more than if they only had to make adjustments on an ad hoc basis.

The legal reasoning behind this is that the test is whether 'disabled persons generally' (or similar wording) are put at a substantial disadvantage (EqA s.20 and Sch 2 para 2(2), Sch 13 para 3(3)). An individual disabled person has a claim if the service provider fails to comply with the duty in relation to him or her (s.21(2) EqA).

From Statutory Code of Practice
"Service providers should therefore not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them. Failure to anticipate the need for an adjustment may create additional expense, or render it too late to comply with the duty to make the adjustment. Furthermore, it may not in itself provide a defence to a claim of a failure to make a reasonable adjustment...
Services Code of Practice, paragraph 7.21.

The Services Code of Practice (para 7.24 to 7.26) goes on to say that service providers are not expected to anticipate the needs of every individual who may use their service, but what they are required to think about and take reasonable steps to overcome are barriers that may impede people with different kinds of disability. Also, though, once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then be reasonable for the service provider to take a particular step to meet them, especially where a disabled person has pointed out the difficulty they face in accessing services, or has suggested a reasonable solution to the difficulty.

Employment - duty is not anticipatory

In the field of employment the reasonable adjustment duty is not anticipatory, but focuses on the individual. It applies as and when a particular job applicant or employee requires an adjustment. However, it will of course often be good practice for employers to anticipate these needs.

There are also certain other situations where the reasonable adjustment duty is not anticipatory. Examples include provision of some services related to employment and, in the education field, often qualifications (e.g. university qualifications).

Onus to comply is on employer or provider

In practice, it will often be sensible for a disabled person to let the employer or service provider know of any adjustments they would like. This makes it more likely in practice that adjustments will be made, and may also help the legal position. See 'lack of knowledge' defence.

However, the duty to make reasonable adjustments is on the employer, service provider etc. Provided the 'lack of knowledge' defence for employers does not apply, the duty is not legally subject to the employee suggesting a reasonable adjustment, though of course it can be helpful for the employee to do so. In Cosgrove v Caesar & Howie (link to bailii.org) EAT, 2001, the fact that the disabled person and her general practitioner had not suggested any useful adjustments was no defence where the employer had itself failed to consider any reasonable adjustments.

From Statutory Code of Practice
"There is no onus on the disabled worker to suggest what adjustments should be made (although it is good practice for employers to ask). However, where the disabled person does so, the employer should consider whether such adjustments would help overcome the substantial disadvantage, and whether they are reasonable."
Employment Code of Practice para 6.24

'Relevant matters'

There are provisions saying basically that the reasonable adjustment duty applies to matters covered by the Equality Act, for example, employment, (including recruitment) and provision of services. The legislation achieves this by saying that the disabled person must be put at a substantial disadvantage "in relation to a relevant matter".

To take employment as an example, for standard employment situations the relevant matters are "Deciding to whom to offer employment." or "Employment by [the employer]" (EqA Sch 8 para 2(3) and para 5). These are wide, and will not normally be relevant as limitations. For physical features (not normally so relevant for communication disabilities) only the second of these two relevant matters applies (EqA Sch 8 para 2(4)).