The potential costs of not making reasonable adjustments in the workplace

Most employers will be aware that under the Equality Act 2010 (“the Equality Act”) there is a duty to make reasonable adjustments for employees that have disabilities. Such adjustments can vary, but can typically include changes to shift patterns, allowing more flexibility with regards to working from home, and allowing more breaks at work.

Where possible, an occupational health assessment is advisable, so a professional can make recommendations on any adjustments that can be put in place to support the disabled employee at work.

Considering reasonable adjustments is a day-one duty for an employer, even at the recruitment stage. The costs of getting it wrong can be substantial as the Employment Tribunal has the discretion to award potentially uncapped damages for the most severe cases of discrimination.

In 2021, a claimant was awarded over £2.5m for his disability discrimination claims, which included a failure to make reasonable adjustments. Therefore, it is important to get things right from the outset, to have in place good internal practices and to seek legal advice when in doubt.

A recent Employment Appeal Tribunal (“EAT”) judgment has established that a reasonable adjustment under the Equality Act can include offering a trial period and retraining for a new role within the business, where it is found that the employee’s disability means that they are no longer capable of performing their current role, even with all reasonable support.

Recent cases

In M Miller v Rentokil Initial UK Ltd, Mr Miller was employed as a pest control technician, a field role that was physically demanding and involved working at heights with ladders. Just under a year after his employment started, he was diagnosed with multiple sclerosis.

Various adjustments were put in place for him following his diagnosis, to try to reduce the impact of his disability on his ability to perform his role. However, around two years following Mr Miller’s diagnosis, the company reached the conclusion that there was no viable way for Mr Miller to continue in his role. As such, alternative roles for him within the business were explored. Mr Miller made an internal application for a service administrator role, and undertook an interview and a written assessment for the role. He was not successful in this application and he did not secure the role. Following on from this, Mr Miller was dismissed on the grounds of capability.

He brought a number of claims to the Employment Tribunal, including a claim for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments. The Employment Tribunal upheld his claim for failure to make reasonable adjustments, holding that it would have been a reasonable adjustment to transfer Mr Miller into the new role for a trial period.

The company’s appeal to the EAT was dismissed. It was held that where an employee’s disability puts them at a substantial disadvantage that they can no longer continue in their role, there is no rule of law that it cannot be a reasonable adjustment to give them a trial period in a new role.

This case illustrates how wide the ‘net of adjustments’ can be in the context of disability, and it will be for an employer to show that any adjustment is not reasonable to be made in the circumstances. The EAT found that there was no reason why a trial period in the new role would not have been a reasonable adjustment for Mr Miller in the circumstances.

Another recent case example entails a bus driver with Crohn’s disease that had worked for Midland Red (South), trading as “Stagecoach” for more than 30 years. His employer was aware of his medical condition and he had had an occupational health assessment recommending a number of different adjustments to his role to support him with his condition. These included including regular access to toilet stops, shifts of no longer than eight hours and a work pattern that allowed him to have three meals a day and to take his medication.

It was understood that if these were not followed, his condition could flare up which could result in an urgent and sometimes uncontrollable need to use the toilet.

Despite these recommendations, his employer failed to continually provide him with the adjustments he needed, resulting in the driver raising several grievances regarding his work patterns and the effects on his condition.

However, his employer continued to give him unsuitable work shifts and on one occasion told him to take a day as annual leave when he objected to his shift pattern that day. The bus driver described the experiences following this; particularly working in unsuitable conditions, as humiliating and embarrassing.

In this case, the Employment Tribunal awarded the driver £25,000 in injury to feelings for failure to make reasonable adjustments. However this does not take into account the legal fees likely incurred by the business during the litigation process, as well as the time costs. It was found that the company’s actions had created an environment that had violated the driver’s dignity, irrespective of their intentions not being malicious.

These two recent cases are a reminder to employers that where employees have disabilities, there is an automatic and ongoing duty under the Equality Act 2010 to make reasonable adjustments to support them in their role and to avoid or at least mitigate any disadvantage due to their disability. Where possible, we recommend carrying out an occupational health assessment and following recommendations as appropriate.