The Act (as amended) identifies three ways in which an employer might discriminate against a disabled employee.
Firstly, by virtue of S.3A(1) by treating him or her, for a reason related to his or her disability, less favourably than he treats employees to whom that reason does not apply.
This is subject to the possibility that an employer may argue that the treatment was justified. The reason for the less favourable treatment must relate to the disability. If there is another unconnected reason there is no breach of duty.
Secondly, an employer may also directly discriminate against a disabled employee if on the grounds of the disabled employee’s disability, he treats the disabled employee less favourably than he treats or would treat an employee not having that particular disability whose relevant circumstances are the same or not materially different from those of the disabled person. Under this heading, justification is no defence (s 3A(5)-(6)).
The distinction between these two forms of discrimination requires an identification of the appropriate comparator. Under S.3A(1) a comparison must be made with a person to whom the disability related reason does not apply, i.e. s/he can be disabled or non-disabled, whereas under S.3A(5) an employer is making generalised assumptions about the disability of its effects. Under S.3A(1) justification may be a defence in appropriate circumstances, whereas under S.3A(5) a blanket ban on disabled persons in general is incapable of being justified.
Thirdly, an employer also discriminates against a disabled employee if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled employee. Where a provision, criterion or practice applied by an employer, or any physical feature of the premises occupied by the employer, places a disabled employee at a substantial disadvantage in comparison to employees who are not disabled, it is the duty of the employer to take such steps as are reasonable for him to take in order to prevent the provision, criterion or practice, or feature (S.4A).
However, there is no such duty if the employer did not know, and could not reasonably be expected to know, that the disabled person is an applicant for employment or that the person has a disability and it is likely to be affected by that provision, criterion, practice or feature.”
What is meant by taking ‘reasonable adjustments’?
The Act doesn’t specify what factors should be taken into account when considering whether or not a step is a ‘reasonable’ one to take. The Code of Practice states that what is reasonable will vary according to:
- the type of service being provided
- the nature of the service provider, and its size and resources
- how the person’s disability affects them in that context.
The Code also says that some of the following factors might be taken into account when considering what is reasonable:
- how effective any steps would be in overcoming the difficulty that disabled people face in accessing the services
- how practicable it would be for the service provider to take these steps
- how disruptive taking the steps would be
- the financial and other costs of making the adjustment
- the extent of the service provider’s financial and other resources
- the amount of any resources already spent on making adjustments
- the availability of financial or other assistance.
What if service providers don’t make reasonable adjustments?
If you say that you have been discriminated against because a service provider has failed to make reasonable adjustments, service providers can defend such a claim if their reasons fall within the following grounds of justifications under the DDA applied. These grounds are:
- health and safety
- inability of the disabled person to contract
- fundamentally alters the nature of the service, trade, profession or business.
Is there anything that I should do?
Although service providers have obligations to think ahead about what disabled people may need to enable them to use their service, it is a good idea for you to let them know if you have any particular needs.
What can I do if a service provider hasn’t complied with the Act?
If a service provider hasn’t made any reasonable adjustments and, as a result of this, it is impossible or unreasonably difficult for you to access the service, then you can take the matter further. In the first instance, you should write to the service provider detailing your complaint and, in particular, why their failure to make adjustments makes it impossible or unreasonably difficult for you to use their service. You can also issue them with the questions procedure, to find out more about their reasons for not making the adjustments.
PART TIME WORK – IS THIS A REASONABLE ADJUSTMENT?
The financial and other costs and the extent of any disruption caused
When trying to decide whether an adjustment would be reasonable, the cost of the adjustment and any disruption it might cause should also be considered.
Cost is not just about the price of making physical adaptations, for example, but also in terms of:
- how experienced and skilled the employee concerned is;
- the cost of replacing that employee;
- how long the employee has been with the company (it is more likely to be reasonable to make an expensive adjustment for a permanent member of staff than a temp); and
- whether the adjustment may be of benefit to other employees (disabled and non-disabled).
The extent of an organisation’s financial and other resources
An organisation with lots of money would be more likely to have to make a reasonable adjustment than one with fewer resources.
However, financial help from government schemes, such as Access to Work is available to help in providing reasonable adjustments for employees. These funds must be taken into account when deciding how ‘financially reasonable’ an adjustment is.
The full financial resources of an organisation must be taken into consideration, not simply those of a particular site where an employee or service is based. For example, a large retail chain would have to think about its overall finances, not just those of one shop.
- Job sharing
- Tasks to another employee that you can no longer handle
- Transfer or alternative role
- Access to work may support the employer
- Working from home