Don’t be guilty of discrimination, says Lupton Fawcett director
By Brian Harrington, director at Lupton Fawcett’s employment law department
MOST employers are aware that they have a duty to make ‘reasonable adjustments’ where they operate a provision, criterion or practice which substantially disadvantages a disabled employee.
Employers who fail to make reasonable adjustments are guilty of discrimination and often find themselves on the losing end of costly litigation. The risks associated with discrimination claims are particularly concerning for employers given that compensation in discrimination is uncapped and can often run to tens of thousands of pounds.
One of the common problems faced by employers, concerns the question of whether a proposed adjustment will be ‘reasonable’ where it involves significant expenditure. G4S discovered this to its cost recently when the Employment Appeal Tribunal (“EAT”) ruled that the company failed to make a reasonable adjustment when it refused (following the reassignment of a disabled employee to a less strenuous and more junior role) to preserve the employee’s existing rate of pay.
The recent G4S case is interesting because for the first time we have authority for the proposition that pay protection can constitute a reasonable adjustment. The ruling in the G4S case does not mean that pay protection will be a reasonable adjustment in every situation (discrimination cases tend to be fact sensitive) but it does highlight the extent of the duty to make reasonable adjustments to employers and serves as a useful reminder that the potential high cost associated with making a particular adjustments will not automatically entitle an employer to discount them.
Whilst the cost of a proposed adjustment is a relevant factor that should be taken into account (whenever an employer is considering whether a particular adjustment should be made) it is not an overriding factor. The law makes it clear that employers will often be required to make adjustments that involve some degree of cost in order to alleviate the disadvantage suffered by a disabled employee. Employer’s often have difficulty coming to terms with this requirement and in many cases companies and organisations have been left bruised and battered after finding themselves on the losing side of a disability discrimination claim that may have been avoided had they given a proposed adjustment genuine consideration and not dismissed it out of hand.
Additionally, employers should not fall into the trap of assuming that an adjustment must be ‘cost effective’ in order for it to be reasonable. It’s clear from the existing case law that large employers (and particularly the public sector) will sometimes be expected to make adjustments that are arguably not cost effective. The reasonable adjustments duty clearly anticipates that employers might have to incur additional costs in order to alleviate disadvantages suffered by disabled employees.
Finally, businesses need to be aware that the Equality Act 2010 makes it clear that it will never be appropriate and/or reasonable for an employer to seek to pass the costs of making a reasonable adjustment (either in whole or in part) onto a disabled employee.
For further information or advice, please contact Brian Harrington, a Director in the Employment Law Department at Lupton Fawcett, on 01904 561433 or brian.harrington@luptonfawcett.law.
