1. Disability under the Equality Act - Two Years On The Duty to Make Reasonable Adjustments 25 October 2012

2. Sarah Stanzel Tanfield Chambers, London E-mail: sstanzel@tanfieldchambers.co.uk www.tanfieldchambers.co.uk

3. Duty to make reasonable adjustments Equality Act (“EA”) 2010, section 20 Section 21(2): Failure to comply with the duty to make reasonable adjustments is discrimination.

4. Indirect discrimination (1) Section 19: (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a)A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c)it puts, or would put, B at that disadvantage, and (d)A cannot show it to be a proportionate means of achieving a legitimate aim.

5. Indirect discrimination (2) Indirect disability discrimination can be claimed in reasonable adjustment cases. Advisable in cases where the employer says that he has complied with the duty / that there was no adjustment that could reasonably be made.

6. Lack of knowledge of disability (1) EA 2010, Schedule 8 para 20: (1)A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a)in the case of an applicant or potential applicant, that an interested disabled person is or may be an applicant for the work in question; (b)in any other case referred to in this Part of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.

7. Lack of knowledge of disability (2) Wilcox v Birmingham Cab Services Limited [2011] UKEAT/0293/10/DM: The employer is under no duty to make reasonable adjustments unless he knows (actually or constructively) both (1) that the employee is disabled and (2) that the employee is disadvantaged in the way set out at section 4A(1) [section 20(3)-(5) EA 2010]; element (2) will not come into play if the employer does not know element (1) (para 37). Statute does not require that the employer should know (actually or constructively) the precise diagnosis, but that he should know (actually or constructively) that the employee is suffering from an impairment whose adverse effects are both substantial and long-term (para 34).

8. Lack of knowledge of disability (3) EA 2010 Code of Practice, para 6.20: If a disabled person expects an employer to make a reasonable adjustment, they will need to provide the employer with sufficient information to carry out that adjustment. Para 6.21: Information gained by OH adviser is assumed to be shared with the employer.

9. First requirement (1) Section 20(3): Where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, the employer must take reasonable steps to avoid the disadvantage. Code of Practice, para 6.10: “Provision, criterion or practice” includes formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.

10. First requirement (2) Roberts v North West Ambulance Service [2012] UKEAT/0085/11/RN: Provision, criterion or practice need not be “applied to” the disabled employee; it can be applied to other employees (claimant had social anxiety disorder and pcp was hot- desking) (paras 32-34).

11. Substantial disadvantage Section 212(1): “substantial” means more than minor or trivial Code of Practice, para 6.15: Whether such a disadvantage exists in a particular case is a question of fact, and is assessed on an objective basis. Para 6.16: Under the duty to make adjustments there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s.

12. Second requirement Section 20(4): Where a physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, the employer must take reasonable steps to avoid the disadvantage. Section 20(10) gives examples of physical features. Section 20(9) gives examples of reasonable adjustments relating to physical features.

13. Third requirement Section 20(5): Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled, the employer must take reasonable steps to provide the auxiliary aid. Section 20(11): Auxiliary aid includes auxiliary service. Code of Practice, para 6.13: This can be a support worker.

14. “ Reasonable ” adjustment (1) Code of Practice, para 6.28: The following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take: whether taking any particular steps would be effective in preventing the substantial disadvantage; the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused; the extent of the employer’s financial or other resources; the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer.

15. “ Reasonable ” adjustment (2) Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT/0552/10/JOJ: Considered section 18B(1)(a) DDA (now para 6.28 of Code of Practice): an adjustment is reasonable if there is a prospect that it will prevent the disadvantage (para 17).

16. “ Reasonable ” adjustment (3) Tameside Hospital NHS Foundation Trust v Mylott [2011] UKEAT/0352/09/DM: Failure to consider ill-health retirement cannot be a failure to make a reasonable adjustment; an adjustment must involve steps that make it possible for the employee to remain in employment (para 53).

17. “ Reasonable ” adjustment (4) Cordell v Foreign and Commonwealth Office [2011] UKEAT/0016/11/SM: Considered section 18B(1) DDA (para 6.28) regarding the reasonableness of the cost of an adjustment; no objective measure; relevant considerations of suggestive or supportive value are: size of budget dedicated to reasonable adjustments; what employer spends in comparable situations; what other employers are prepared to spend; cost of recruiting and training a replacement; employer’s resources; how much the employee would benefit from the adjustment (paras 27 & 30).

18. “ Reasonable ” adjustment (5) Section 20(7): The employer must not require a disabled employee to pay the costs of complying with the duty to make reasonable adjustments.

19. “ Reasonable ” adjustment (6) Olenloa v North West London Hospitals NHS Trust [2012] UKEAT/0599/11/ZT: The duty to make reasonable adjustments does not cease when the employee goes on sick leave, unless the tribunal finds that the employee would not have remained or returned to work even if reasonable adjustments had been made (para 30).

20. “ Reasonable ” adjustment (7) For examples of reasonable adjustments, see Code of Practice para 6.33 (formerly in DDA section 18B(2)).

21. Post-termination Section 108(4): A duty to make reasonable adjustments applies to A in so far as [post-termination] B continues to be placed at a substantial disadvantage as mentioned in section 20. Hinsley v Chief Constable of West Mercia Constabulary [2010] UKEAT/0200/10/DM: Considered section 16A DDA (now section 108): the employee resigned, then was diagnosed with depression and asked to be reinstated (because resigned while affected by depression); her reinstatement would have been a post-termination reasonable adjustment (para 22).

22. Time limit (1) Section 123: (Usual 3 month time limit) (3)For the purposes of this section— (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a)when P does an act inconsistent with doing it, or (b)if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.

23. Time limit (2) Humphries v Chevler Packaging Ltd [2006] UKEAT/0224/06/DM: Decided under Schedule 3 para 3(4)(a) of DDA (now section 123(4)(a)); a letter from the employer saying that the only job available to the employee was the cleaning job which she had refused was an “inconsistent act” (para 24).

24. Time limit (3) Matuszowicz v Kingston upon Hull City Council [2009] EWCA Civ 22: Decided under Schedule 3 para 3(4)(b) of DDA (now section 123(4)(b)); where there is no inconsistent act, the time limit starts running at a time when the employer might reasonably have been expected to have made the adjustment; the parties may not be aware that time has started running (paras 20 & 24). Sedley LJ remarked that employees need to consider issuing proceedings sooner rather than later (para 37) and when deciding whether to enlarge time, tribunals should be sympathetic to the difficulty para 3(4)(b) may cause (para 38). On the facts of this case, there was a continuing omission from the date when the need for alternative suitable work became clear, which continued for one year until the claimant’s TUPE transfer (para 25).