For small businesses operating on tighter margins and with a smaller workforce, the costs of adjustments and the availability of resources can make the question of implementing adjustments for a disabled employee more challenging. Also a small business is less likely to have an HR department that can advise the employer as to their legal duties. However, small businesses should be mindful that the law only requires them to put in place adjustments that are reasonable in the circumstances.
In 2016 the Government launched a Disability Confident scheme, which employers can sign up to on a voluntary basis, which aims to support employers (and particularly small businesses) make the most of the talents that disabled people can bring to the workplace with 3 different levels of accreditation. Whilst the scheme has come under a lot of criticism for its ineffectiveness in increasing employment rates amongst the disabled, the aim is clear.
Employers are legally obliged to make 'reasonable adjustments' in the workplace where a disabled person would otherwise be put at a substantial disadvantage compared with their non-disabled colleagues, if the adjustment is not made.
Under the Equality Act 2010, a person has a disability if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. A disability does not only apply to physical impairments, but also applies to mental impairments.
The FSB has produced guidance on how small business owners and the self-employed can approach mental health in the workplace: https://www.fsb.org.uk/docs/default-source/FSB-Wellbeing-HUb-/mental-health-campaign-guide.pdf.
It should be borne in mind that the adjustment has to be reasonable for that that duty to be considered breached. In other words, it's the reasonableness alone that determines if an adjustment has to be made.
What is 'reasonable' depends on the individual circumstances of the case and the size and resources of the employer. In other words, an adjustment would have to be practicable, effective and within the scope of the employer's financial and human resources.
In determining whether the adjustment is reasonable to make, employers should consider:
- if taking any particular step or 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 (bearing in mind the size and type of employer); and
- the availability of financial or other assistance to help make an adjustment (such as advice through Access to Work)
The Access to Work programme, which is administered through Jobcentre Plus provides grants towards the cost of various adjustments, such as the cost of adapting premises; adapting or purchasing equipment; providing readers or interpreters; help with interviews and additional travel costs to work. The employer or worker then purchases the equipment, etc and reclaims the grant from Access to Work. The employer may have to make contributions.
Some adjustments may not involve any additional expense to the employer. For example, when recruiting employees, it may be a reasonable adjustment for employers to allow a disabled job applicant extra time to complete a recruitment test or other assessment. Employers should also consider if it would be a reasonable adjustment to modify the form of the test, for example putting it in audio, Braille or a large print format.
The Employment Appeal Tribunal found that the Government Legal Service’s requirement for a job applicant with Asperger's syndrome to complete an online multiple-choice psychometric test was discriminatory, insofar as it was not a proportionate means of achieving the legitimate aim of testing the ability of applicants to make effective decisions and was not justified. Modification of the test format for the applicant to allow her to give short written answers, in place of the multiple-choice format, would have been a reasonable adjustment for the recruiter to have made. This shows how employers may need to be flexible in their recruitment methods where these may put a disabled applicant at a disadvantage.
It is a good starting point for an employer to conduct a proper assessment, in consultation with the disabled person concerned, of what reasonable adjustments may be required, in conjunction with any medical advice received, e.g. from the employee’s doctor. A common adjustment for an employee returning from a long period of sickness absence would be to implement a phased return to work, with the employee’s agreement, on reduced hours with a gradual build-up of hours. This would be practicable where this work can be covered or absorbed by the employer on a temporary basis.
The FSB Legal Helpline offers advice to FSB members on a range of legal issues, including the requirements around reasonable adjustments in the workplace for disabled employees. Contact 0345 0727 727 if you need assistance.