Author
This article was updated on 29/11/24
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to support disabled job applicants, employees, and former staff, in certain circumstances. As such, it’s important for employers to recognise that reasonable adjustments must be considered right at the outset of any recruitment exercise.
When does the duty to make reasonable adjustments arise?
The duty to make reasonable adjustments can arise where a disabled person is placed at a substantial disadvantage by:
- An employer’s provision, criterion or practice (PCP), (an example in recruitment could be an employer’s policy which requires all applicants to undertake an online test which must be completed within 30 minutes);
- A physical feature of the employer’s premises, (this could include things like steps, parking areas, building entrances and exits, toilet and washing facilities, lighting, lifts and furniture);
- An employer’s failure to provide an auxiliary aid, (this could include provision of specialist equipment such as text to speech software or a Braille keyboard and can include auxiliary services, such as a sign language interpreter).
The obligation will only arise when the employer knows or ought reasonably to know that the individual is disabled and likely to be placed at a substantial disadvantage because of their disability.
How does an employer know if a job applicant requires reasonable adjustments?
Although generally an employer is prohibited from asking a potential recruit questions about health, pre-employment health questions are permitted in order to establish whether reasonable adjustments to the recruitment process are required.
As such, at the outset of the recruitment exercise, it is sensible for job adverts and role descriptions to include a sentence to confirm that the employer is happy to discuss reasonable adjustments, or to invite applicants to contact the employer if they require reasonable adjustments. It is also good practice to ask candidates whether they require any reasonable adjustments in advance of an interview (for example, in the invite letter) and nevertheless, check whether any adjustments are needed at the start of the interview.
How does an employer decide if an adjustment is ‘reasonable’?
What is ‘reasonable’ is a fact-sensitive question. Ultimately, only an employment tribunal can determine whether a particular adjustment would have been reasonable in the circumstances. Factors that should be taken into account when deciding if an adjustment is reasonable include:
- Whether or not making the adjustment would be effective in preventing the disadvantage;
- The practicability of making the adjustment;
- The costs. Note that an adjustment does not need to be “cost effective” to be reasonable. Employers may need to incur reasonable additional costs in order to prevent the disadvantages suffered by disabled people;
- The extent of any disruption caused;
- The extent of the employer’s financial or other resources. Larger and public sector employers with substantial resources may be required to make adjustments which are not “cost effective”. However, this will not necessarily require very expensive adjustments to be made, and there will be a balancing exercise between the disabled person’s need for the adjustment vs the resources and spending priorities of the employer;
- The type and size of the employer.
What potential adjustments could be made during the recruitment phase?
This will depend on the relevant circumstances, considering the individual’s specific disability, what substantial disadvantage they would suffer, and what adjustments can be made to alleviate that disadvantage. As mentioned above, what will be considered ‘reasonable’ will depend on a number of factors. However, the following are examples of adjustments which may be relevant to consider during the recruitment phase:
- Providing application forms in accessible formats, such as Braille, audio or large print;
- Allowing a dyslexic job applicant additional time to complete a written exam;
- Allowing a candidate with Asperger’s syndrome to answer a multiple-choice test in an alternative format, by providing short written answers; [1]
- Holding an interview in a meeting room on the ground floor and providing designated parking close to the office, for a job applicant who has a mobility disability;
- Arranging an interview at a specific time of the day if an applicant has a condition which requires medication at certain times of the day, or if the applicant experiences fatigue at certain times of the day;
- Allowing an applicant to make their job application orally, rather than online. [2]
Does the individual have to tell the employer what adjustment they require?
The duty to consider making reasonable adjustments falls on the employer. There is no onus on a disabled person to suggest adjustments. However, the EHRC code states that it is good practice for the employer to ask the disabled individual about possible adjustments. It is then sensible for an employer to agree any proposed adjustments with the individual before they are made.
Take home message for employers
Employers should be mindful of discrimination risks at each stage of the recruitment process. It’s sensible to start from a positive standpoint, where an employer is committed to supporting a disabled applicant with necessary adjustments. In most cases, adjustments should be fairly straightforward and easy to accommodate. In more complex cases, where the employer has concerns that the adjustments are not ‘reasonable’, it should consider the factors outlined above and recognise that adjustments might not always be possible to accommodate and / or cost effective. If an employer is thinking about refusing to make an adjustment, it would be well advised to seek specific legal advice to assess risk. Our Employment Team is experienced in supporting clients in these type of situations, so please do contact James Baker or one of the Team if you wish to discuss further.
[1] In The Government Legal Service v Brookes UKEAT 0302/16, the EAT held that the Respondent failed to make reasonable adjustments by refusing to allow a candidate with Asperger’s syndrome to answer a multiple choice test in alternative format, namely by providing short written answers.
[2] In Mallon v AECOM Ltd UKEAT/0175/20, the Claimant, who has dyspraxia, argued that he required a reasonable adjustment to make his job application to the Respondent orally, rather than online.
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice
Author