This article was first published in People Management in February 2016.
When do employers have to make reasonable adjustments and what are the consequences if they don’t?
Under section 20 of the Equality Act 2010, employers are under a duty to make reasonable adjustments where a provision, criterion or practice, (“PCP”) or a physical feature puts a disabled person at a substantial disadvantage in comparison to those who are not disabled; or where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled. The employer must also know (or be reasonably expected to know) of the employee’s disability and that they are likely to be placed at such a substantial disadvantage before the duty arises.
The ACAS guide on Disability Discrimination suggests that employers ask themselves three questions in assessing whether an adjustment needs to be made: Do we need to change how things are done? Do we need to physically change the workplace? Do we need to provide extra equipment?
Disability is one of the protected characteristics under the Equality Act 2010 and is defined as follows: “a person has a disability if he has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day to day activities”.
An impairment is long-term if either it has lasted or is likely to last at least 12 months, and a substantial adverse effect is one which is more than minor or trivial. Impairments can include conditions which are progressive, recurring, or which but for medication, would otherwise have such an effect. What is meant by normal day to day activities has been the subject of much litigation.
“Day to Day activities” and the Banaszczyk case
The Equality Act 2010 Guidance describes normal day to day activities as “things people do on a regular or daily basis” and provides a list of non-work activities. However, following the ECJ cases of Chacon Navas v Eurest (2006) and Ring v Dansk (2011), the effect of an impairment on the worker’s ability to participate in professional life (i.e. workplace activities) also needs to be considered as illustrated in the recent EAT case of Banaszczyk v Booker Ltd (2016).
Mr Banaszczyk was employed from 2008 as a picker in a warehouse, whose duties were to load cases of goods. Following a car accident in 2009 he could no longer lift heavy loads without suffering discomfort. As a result, his “pick rate” (a requirement to load 210 cases per hour) fell below the employer’s acceptable standard. In July 2013, he was dismissed on grounds of capability and he then brought a claim of unfair dismissal and disability discrimination.
Although the ET decided that Mr Banaszczyk did not have a disability, it was unclear whether the judge decided that the lifting and moving activity fell within the definition of a normal day to day activities. The EAT however, concluded that on the ET’s findings of fact, there was only one possible result, Mr Banaszczyk’s workplace activities of lifting and moving did constitute a normal day to day activity. Large numbers of people in the UK are employed to lift and move heavy goods across a range of occupations and this impairment did have a substantial effect on Mr Banaszczyk’s ability to carry out that activity (as he was significantly slower). The case therefore reinforces the position that an ET will consider certain workplace activities as “normal day to day activities” even though such activities may not be “normal” for everyone.
In considering changing the way things are done, the employer may have considered whether it was feasible to change the way the goods were loaded or packed, removing the need for Mr Banaszczyk to lift the heavier goods.
As for whether the workplace could be physically changed, it could have considered whether smaller pallets and wider doorways, would have helped.
Finally, would an auxiliary aid have been useful? Perhaps some of the manual lifting could have been done by forklift, or perhaps by a second person lifting a load with Mr Banaszczyk.
The recent ACAS Disability Discrimination guidance states that the majority of people develop a condition during their working life rather than being born with a disability. This may mean that many employers have little experience of making reasonable adjustments. As compensation awards for successful disability discrimination claims are unlimited, it is crucial for employers to fully understand when the duty to make reasonable adjustments arises and what the duty entails.
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