Bevan Brittan's employment team regularly advises on a range of issues relating to equalities, and we have been dealing with several cases recently in respect of the duty to make reasonable adjustments for disabled employees. James Gutteridge answers some of the tricky and common questions which arise in relation to this thorny issue.
Summary: reasonable adjustments
Like the Disability Discrimination Act 1995, the Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled employees in certain circumstances. The duty can arise where a disabled person is placed at a substantial disadvantage by
- an employer's provision, criterion or practice (PCP); or
- a physical feature of the employer's premises; or
- an employer's failure to provide an auxiliary aid.
The EHRC Employment Statutory Code of Practice (the EHRC Code), which tribunals must take into account if it appears relevant, contains a non-exhaustive list of potential adjustments that employers might be required to make.
Can we offer a disabled employee reduced hours for a specified fixed period without breaching the duty to make reasonable adjustments?
If the fixed period of reduced hours is recommended by Occupational Health, a GP or other health professional, and the employee does not continue to suffer a 'substantial disadvantage' at the end of the fixed period, then it is unlikely that this will breach the duty to make reasonable adjustments. This issue was considered in a case called Secretary of State for Work and Pensions v Higgins which was issued last month. In this case, the claimant, Mr Higgins, presented his employer (JobCentre Plus) with a 'Fit Note', following a long period of sickness absence. The Fit Note recommended a phased return to work on different hours for 3 months; Mr Higgins wanted a 26 week phased return. This was rejected by the JobCentre, which counter-proposed a 13 week return to work plan. Mr Higgins resigned, claiming that the JobCentre's refusal to extend the return to work plan to 26 weeks amounted to a failure to make reasonable adjustments. However, the Employment Appeal Tribunal (EAT) disagreed and said that the JobCentre had not failed to make reasonable adjustments. The EAT recognised that employers are often presented with Fit Notes which recommend a phased return to work for a fixed period of time, and did not consider that employers should be required to give an explicit guarantee to extend the period recommended. Having said that, the EAT went on to say that if the employee continues to suffer a substantial disadvantage at the end of the fixed period, then the duty to make reasonable adjustments will be judged on the circumstances relevant at that particular time.
If a disabled employee's hours are reduced as a 'reasonable adjustment', can we reduce their pay accordingly, or do we have to ring-fence the employee's salary?
Reduced working hours to accommodate a disability are a common example of an adjustment that may be reasonable under the Equality Act 2010 and this is also included as an example of a possible reasonable adjustment in EHRC guidance. However, there is no specific requirement for employers to protect the salary of the employee in question, and their pay may be reduced accordingly – so that they are only paid for the hours that they work.
However, whilst the advice outlined above has been common practice for some years, there is an untested argument that it is arguable that lowering a disabled person's pay owing to reduced hours because of their disability may need to be objectively justified under the Equality Act 2010's 'discrimination arising from disability' provisions and/or indirect disability discrimination provisions. In these circumstances, you would need to consider whether the decision to reduce the employee's salary was justified as a proportionate means of achieving a legitimate aim.
We have a disabled employee on long-term sickness absence, and they are about to exhaust their entitlement to full pay. Would it be a reasonable adjustment to pay the employee their full salary during their period of absence due to disability?
This can be a difficult issue for employers, and many of our
clients feel that disabled employees on long-term sickness absence
are deserving of more generous treatment than non-disabled
employees. However, the legal position is that paying salary
to a disabled person during sick leave, in excess of the normal
statutory or employer sick pay entitlement, may be a reasonable
adjustment but only in rare circumstances. The main case on
this point is O'Hanlon v HMRC. There, a disabled employee who
had exhausted her sick pay entitlement claimed that she was
substantially disadvantaged by her employer's sick pay rules. The
Court of Appeal said that it would only rarely be a reasonable
adjustment to give higher sick pay to a disabled employee than a
non-disabled employee. The Court went on to say that the duty to
make reasonable adjustments is designed to enable disabled people
to play a full part in the world of work, not to treat them as
"objects of charity" (which may act as a disincentive to return to
work). The Court of Appeal upheld the tribunal's finding that the
claimant had been disadvantaged as a disabled person (because she
had exhausted her sick pay) but that her employer had made all the
reasonable adjustments to alleviate her disadvantage and assist her
back to work. This was distinguished from the earlier case of
Nottinghamshire County Council v Meikle, where it was
held that it was appropriate for an employer to pay an employee's
full pay during sick leave, because the employee's absence from
work (and consequent loss of pay) had been caused by the employer's
failure to make a reasonable adjustment. The more recent case of
Royal Bank of Scotland v Ashton followed
O'Hanlon and said that, while there may be cases where it would be
a reasonable adjustment to disapply the employer's normal sick pay
policy, such a case would have to be "exceptional".
As outlined in the previous question, whether or not a reasonable adjustment to sick pay rules is required, it is theoretically arguable that stopping or lowering a disabled person's pay owing to sickness absence now needs to be objectively justified as "discrimination arising from disability" and/or indirect disability discrimination.
A note of caution…
Whether a particular adjustment is or is not reasonable is, by its nature, fact-specific. The same adjustment may be reasonable in one case and not reasonable in another. Indeed, different tribunals may validly reach the opposite conclusion on exactly the same set of facts. Therefore, it is very difficult to give blanket advice on whether an adjustment generally will be considered 'reasonable' by an employment tribunal; but the team at Bevan Brittan has a wealth of experience in advising clients on how the duty works in practice, and we are always happy to talk through any concerns and provide a view on the likelihood of a proposal meeting the test in the Equality Act.