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Adjust or pay out in disability cases. By Charles Price

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Commanding awards of unlimited compensation and bringing the worst kind of publicity, an adverse discrimination decision in an employment tribunal ought to be the worst nightmare of any employer and yet very few are fully equipped to protect themselves. Making reasonable adjustments for disabled people is the area where most employers fall foul.

The various sections of the Disability Discrimination Act 1995 impose a potentially burdensome duty on employers to make reasonable adjustments to ensure that in any particular case a disabled job applicant or employee is not disadvantaged by reason of working practices or the physical features of premises. The adjustments required could be, for example, adjustments to working practices or to physical conditions or to provide alternative employment. The Act provides a lengthy list of examples (DDA 1995 s.18B(2) and this is expanded on by the ‘Disability Rights Commission employment Code of Practice’. Any employer would be wise to read the DRC Code, which although not enjoying the status of statutes still can be used in a tribunal as evidence of the correct way to behave.

In the UK, no employer can function properly without some external or internal professional source of medical and employment advice being available. An Occupational Health expert with a knowledge of the Disability Discrimination Act should be referred to when an employee complains of feeling ill, has complained in the past (perhaps on her application form) of suffering from illness or is off sick with something trivial, such as flu. The employer should certainly not don the cap of an ‘internet quack’, second guessing who is disabled under the Act and diagnosing illness without recourse to an expert.

Under the new Act those with a clinically recognised mental illness or those with types of autism invisible to those without a trained eye can be deemed ‘disabled’. Another example of a disability which might only be seen by the experts as falling under the Disability Discrimination Act was a feature in the case of Southampton City College v Randall* where a condition called ‘functional dysphonia’ meant that the Claimant was rendered unable to speak normally.

Once it has been determined that there is a potentially disabled employee, the various sections of the Disability Discrimination Act 1995 impose a potentially heavy duty on employers to make reasonable adjustments to ensure that in any particular case a disabled job applicant or employee is not disadvantaged by reason of working practices or the physical features of premises. The adjustments required could be, for example, adjustments to working practices or to physical conditions or to provide alternative employment – the Act provides a lengthy list of examples (DDA 1995 s.18B(2) and this is expanded on by the Disability Rights Commission Employment Code of Practice*.

The danger of not treating this area of the law with a great deal of respect was highlighted in cases such as, The Prison Service v Beart,* where a prison officer was awarded £400,000 for her claim of disability discrimination under the Disability Discrimination Act. The applicant, who was employed as a full-time executive officer, suffered from depression after her position was changed to that of a part-time administrative officer. The recommendation of the occupational health consultant to relocate her to another posting was not acted on. The tribunal awarded compensation for future loss of earnings to be calculated from the time that she had been recommended for relocation until retirement.

It is unlawful discrimination not to comply with a duty to make ‘reasonable adjustments’ in relation to a disabled employee. The duty is to take such steps as it is reasonable, in all the circumstances of the case, to take. If the employer, however does not know, and could not reasonably be expected to know that the disabled person has a disability then the duty to make ‘reasonable adjustments’ does not apply (DDA 1995 s.4A(3)).

In my experience, there are so many potential adjustments proposed by the Act and Code an employer is well advised to do everything possible to accommodate the disabled employee. Once the case arrives at the tribunal door they are more often than not difficult to defend. It is particularly important that the adjustment should be put in place if suggested by Occupational Health. It is not for the employer to cherry pick unless the adjustment is ‘unreasonable’.

It is worth looking at the Code to see what type of adjustments an employer is expected to make. A larger employer with plenty of resources at hand is generally expected to do more than a smaller firm. The following are some of the adjustments an employer is expected to make:

  • making adjustments to premises

  • allocating some of the disabled person’s duties to another person

  • transferring him to fill an existing vacancy

  • altering his working hours; e.g flexi-time

  • assigning him to a different place of work

  • allowing him to be absent during working hours for rehabilitation, assessment or treatment

  • giving him, or arranging for him to be given, training

  • acquiring or modifying equipment

  • modifying instructions or reference manuals; e.g converting into Braille

  • modifying procedures for testing or assessment

  • providing a reader or interpreter

  • providing supervision.

  • Making sure staff are instructed to be helpful at all times.
  • Steps to Take:

  • 1)Make sure you have a medical expert with knowledge of the DDA available.
  • 2)Prevention is better than cure! If appropriate ask Occupational Health to examine all those who could potentially fall under the auspices of the DDA.
  • 3)If an individual is seen to be potentially covered by the DDA as disabled (a purposive approach should always be taken) then the employer should consider all of the above reasonable adjustments and bend over backwards to accommodate ‘reasonable’ adjustments proposed by Occupational Health.

  • *The Disability Rights Commission and Code http://www.drc-gb.org/
    *The Prison Service v Beart, (No 2): [2005] EWCA Civ 467
    *Southampton City College v Randall. EAT, 2006 IRLR 18.

    Charles Price, barrister
    No5 Chambers
    www.charlesprice.net

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