This Sunday is Disability Awareness Day. It is also 20 years since the Disability Discrimination Act 1995 (DDA) introduced the statutory obligation for employers to make reasonable adjustments in respect of disabled employees, now enshrined in the Equality Act 2010 (EqA). This remains a central plank of an employer’s strategy to attract and retain disabled employees.
Disability is addressed differently from other protected characteristics in the EqA. It is still the only one subject to a reasonable adjustment obligation for example. Anna Lawson (a leading academic in the field of reasonable adjustments) points to the “reactive” nature of the reasonable adjustment duty in the EqA in that it is:
“…a duty to respond to the disadvantage experienced by a particular individual and to take account of the particular circumstances of the specific case and the specific person. Such sensitivity to the particular individual and their circumstances is an essential mechanism for ensuring that a countless range of barriers can be removed, on a case-by-case basis, for individuals with a vast range of different impairments, working methods, backgrounds and skills.”
The importance of the focus on the particular is hard to overstate because if ever there was an example of one-size not fitting all, this is it. But the particular needs of an individual candidate or employee have to be seen against a broader backdrop too, both in terms of an employer’s structure and broader societal and market factors.
Positive statements at the recruitment stage encouraging applications from disabled candidates are of course important as are commitments to using reasonable adjustments to help support and facilitate progression within an organisation – workplace adjustments are vital in both recruiting and retaining talent within an organisation.
Consumers of goods and services are diverse and have increasingly high expectations in terms of what is expected from their service providers.. Therefore workforces are increasingly expected to reflect the characteristics of their immediate and national communities. Failing to tap into the UK’s talent pool by adopting policies and practices which do not facilitate the recruitment and retention of disabled workers is a business risk for all employers.
A prime example may be seen in the approach to candidates who are diagnosed as being on the autistic spectrum. The National Autistic Society says that some 700,000 people are diagnosed as being on the autistic spectrum but only 15% are in full-time employment; and that almost 80% of such people on benefits want to work. The emphasis here is on the word “spectrum” – autism need not prevent success in the workplace, and it is increasingly apparent that features of autism may provide opportunities for employers and prospective workers alike.
Asperger’s Syndrome, for example, may lend itself to very high levels of concentration and acuity when dealing with figures, and a facility for processes and processing data. Such skills may be deployed very effectively in aspects of back office financial services work – accounting and computer programming among them.
The adjustments necessary to help support employees with Asperger’s Syndrome are likely to focus on interactions with colleagues, and include an awareness of and sensitivity towards some of the particular challenges these employees will face. Managers may be encouraged to deliver unambiguous instructions, avoid assumptions and identify clear processes to facilitate ready clarification of instructions.. Crucially, fellow colleagues may need to be provided with training and information. This is not intended to isolate or stigmatise co-workers but rather to explain and possibly “de-mystify” conditions or impairments. This is an area where presentations to the wider workforce through the auspices of an internal diversity network and external experts can be very helpful.
Cost is an important factor when assessing the reasonableness of an adjustment but it is not the sole factor. Moreover the emphasis, ever since the Parliamentary debates and Committee stages prior to the enactment of the DDA, has been on thinking creatively and practically, to identify changes which might be relatively inexpensive to implement. The Access to Work scheme remains a potential source of funding when seeking to support disabled employees but in an age of austerity this funding is under pressure.
The Equality and Human Rights Commission’s examples of possible adjustments in practice are extensive and will be familiar to many HR practitioners. For example, the allocation of some aspects of a role to a colleague who may more readily carry out them out or altering hours and places of work. The utility and effectiveness of potential adjustments in a specific context have to be considered: for example, a request permanently to implement a home-working regime may not be suitable in practice for more junior employees if there is a need for regular daily supervision and team-working, whereas it may be more feasible for a more senior and autonomous role
Clearly on-going improvements in workplace technology can greatly improve the prospect of accommodating both physical and mental impairments. The EHRC guidance states that an employer might have to provide special equipment (such as an adapted keyboard for someone with arthritis or a large screen for a visually impaired person), an adapted telephone for someone with a hearing impairment, or other modified equipment for disabled workers (such as longer handles on a machine).
It is important for employers to monitor technological improvements and also to consider whether there may be scope to transfer an employee to a different role which may be more susceptible to effective adjustments.
