Recent developments in disability discrimination law
The law requires employers to make reasonable adjustments to accommodate their employees who have a disability. It has long been established that an employer’s obligation to make reasonable adjustments includes making reasonable adjustments to job roles and descriptions.
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Reasonable adjustments to job roles and pay protection: new case law
What has been less clear until recently has been whether an employer who moves an employee to a new post due to the employee’s disability is required to pay that employee the same salary as for the old post even if the new post has a lower salary i.e. whether pay protection as it is called is a reasonable adjustment. In a recent ruling the Employment Appeal Tribunal decided that an employer who had moved an employee from a job he could no longer perform due to his disability to another less skilled and lower paid role should have continued to offer pay protection to that employee and that it was therefore disability discrimination to have implemented a wage cut.
The Tribunal said that there was no reason in principle why pay protection could not constitute a reasonable adjustment. However the Tribunal did not say pay protection had to carry on permanently: as always the matter had to be judged according to the circumstances of the case at any given time and changed circumstances may mean the adjustment ceased to be a reasonable one which the employer was obliged to make.
The duty to make reasonable adjustments: recap
The law requires employers to make reasonable adjustments to accommodate their employees who have a disability. There are three types of adjustments:
- to property and premises e.g. installing a lift in the office
- to provide auxiliary aids e.g. provision of alternative equipment like an ergonomic chair
- to practices and policies e.g. changing the employee’s job description to vary duties
What is reasonable when it comes to making reasonable adjustments is not defined in law and will depend on the circumstances of the case such as the nature of the adjustment, the costs involved, the size and resources available to the employer etc. Each case will be different and what is reasonable for one employer in one set of circumstances is not necessarily the same for another employer.
Top tips for disabled employees needing reasonable adjustments
The first thing to do is to ensure your employer is aware of your disability. If your employer is not aware of your condition it cannot be held responsible for not making reasonable adjustments. Not every condition will constitute a disability. The legal definition is “a long term physical or mental impairment which has a substantial and adverse impact on the employee’s ability to carry out day to day activities”.
The next thing is to assess what difficulties you are facing in your job or workplace due to your disability and consider the options on what changes would alleviate those difficulties. For example it could be that you have a condition which makes it difficult for you to comfortably use existing office equipment like the desk and chair and that you need especially designed ergonomic equipment. Another example could be that you have more absences than non-disabled colleagues due to your condition and you want your employer to make an adjustment to the attendance policy to relax the attendance requirements/ targets in your case so that you are not subject to the same process as that which would apply to other colleagues. In the recent case mentioned above the scenario was that the employee could not perform his job role any longer due to his disability so was offered another role within the organisation.
Once you have identified your disability and proposed any solutions to your employer it will then be for the employer to make a decision. A good employer would refer the matter to an occupational health assessor for a medical opinion on the disability and what steps would constitute a reasonable adjustment. In the event your employer does not seek a medical assessment or the outcome of the assessment is not one you agree with then you could seek to get a medical opinion of your own accord to support your position for example from your GP. In the event there is conflicting opinion between two medical assessments then your employer will have some leeway to choose which opinion to follow.
You should also seek out support and guidance from organisations like Disability Rights UK and the Equalities and Human Rights Commission which can provide useful information and signposting. Access to Work is a scheme under which employees can secure specific funding to assist employers to make reasonable adjustments subject to assessment.
If you are having problems at work due to your disability…
If your employer is not acknowledging or addressing your situation you should in the first instance raise a grievance formally setting out your complaints. Most employers will have written grievance and equalities policies that provide a complaints process.
If your employer is failing to make reasonable adjustments you also have the option to pursue legal action against your employer for disability discrimination in the Employment Tribunal. A claim for disability discrimination against your employer must be made within a period of 3 months less one day from the date of the discrimination. In the case of a failure to make reasonable adjustments the deadline will be 3 months less one day from the date the employer made the decision not to offer the reasonable adjustment to you. This deadline will not be suspended just because you are raising a grievance about the situation so legal action must not be delayed even if you have started an internal complaint.
Negotiating an exit
Fighting for your rights in the face of being subject to disability discrimination may not be easy.
If you are contemplating this option then you should explore the possibility of your employer agreeing to pay you off with an exit package to leave under a settlement agreement (formerly called a compromise agreement). This will avoid the time and stress of internal complaints procedures and the time and cost of legal action whilst tiding yourself over between jobs.
You could try to negotiate a deal yourself of course and use the threat of legal action with a claim for disability discrimination as leverage to do so. However to stand a better chance of being taken seriously and using the right negotiation tactics to secure the best deal in your circumstances it would be advisable to use the services of an experienced negotiator such as a solicitor with expertise in the field of disability discrimination. Any negotiation should be done on a ‘without prejudice’ basis so that you have not committed to leaving your employment unless and until the deal is right for you. As mentioned above the deadline to pursue legal action carries on regardless so this should be borne in mind even though a negotiation may be taking place to resolve the matter out of court.
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