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MILS Update – The duty to make Reasonable AdjustmentsBack

MILs“I have an employee in the Workshop who has always suffered from a bad back and has had a number of operations. He can’t perform some of the tasks anymore. He has now come into my office and told me that I am legally obliged to make “reasonable adjustments” to his job. He is saying if I don’t do this then he might take me to a Tribunal. Is he right? What do I have to do and what are the risks?”

The duty on you as an employer is to make what are called “reasonable adjustments” to any elements of a job which places a disabled employee at a substantial disadvantage compared to a non-disabled employee.

If an employee approaches you with a medical problem and says you have to make adjustments to his job, the first question would be to consider whether or not you are legally obliged to make any adjustments (albeit it may be good practice to try to assist anyway). This depends on whether or not the employee is disabled within the meaning of the Equality Act 2010.

What is a disability for Employment law?

A disability for the Equality Act 2010 is not quite what you would think. To classify as a disabled person within the meaning of this Act the employee must suffer from a condition (physical or mental) which has a substantial, long term, adverse effect on their ability to carry out normal day-to-day activities. Note that the focus is on normal day-to-day activities such as bending, walking, talking etc and not the specific duties he or she may be required to perform as part of their job.

A condition will be “long term” if it has lasted, or is expected to last, for at least 12 months, or for the rest of a person’s life.

Don’t forget also that some people with long term conditions are automatically disabled under this Act. People with cancer, HIV and multiple sclerosis are protected from the point of diagnosis, even if their condition does not yet have a substantial adverse effect.

In the situation above, if you know that your employee has a long term back condition and he has had a variety of operations that have restricted his mobility and movement, then it is likely he may be disabled and there would be a legal risk if you ignored his request. If by contrast, for example, an employee simply had sprained his ankle or had a short-term condition like a broken arm that was expected to heal within a few months, the condition would not be covered.

Don’t forget however that you also have a general duty of care under Health and Safety law and would need to act reasonably with employees who have over 2 years’ service, who may have the right to resign and claim constructive dismissal if you acted unreasonably in relation to their request.

What is a reasonable adjustment?

The adjustment can be to anything in the workplace that puts the disabled person at a substantial (i.e. more than trivial) disadvantage compared to someone who is not disabled.

This could, for example, apply to a particular term of contract, such as the hours they work or a policy that applies to them. It could, for example, apply to a physical feature of the premises, or the lack of some kind of aid or assistance that would help the disabled employee in carrying out their duties.

Whether or not it is reasonable to make a particular adjustment will depend on all the circumstances. Remember however that ultimately it is the Tribunal’s decision as to whether or not a suggested adjustment is or is not reasonable and therefore the test can be onerous on employers.

The factors the Tribunal would take into account are the size and resources of the employer and the cost and practicality of making the adjustments. The extent to which the adjustment would be advantageous to the employee, versus the cost/ injustice /disruption that might be caused by the adjustment, are likely to be key factors in any decision. If you fail to make reasonable adjustments and a claim is brought in a Tribunal then you may have to pay damages to your employee.

Andrew Macmillan, Solicitor, Motor Industry Legal Services

Posted by Sue Robinson on 08/05/2015