Building inclusive workplaces: reasonable adjustments

In May 2024, the Government published updated guidance on employing, managing and developing disabled people which you can view here. This comprehensive guide serves as an important resource for employers committed to fostering an inclusive environment for disabled employees. It highlights the importance of reasonable adjustments and provides practical advice to help organisations navigate the complexities of accommodating diverse needs effectively.

In this blog, we examine the extent of an employer’s duty to make reasonable adjustments, including highlighting a recent Employment Appeal Tribunal (EAT) decision on whether offering a trial period in a new role might be reasonable.

The duty to take reasonable adjustments

Under the Equality Act 2010, employers have a positive duty to make reasonable adjustments. This duty covers job applicants, employees, workers, and some self-employed people. Reasonable adjustments are changes that must be made at work to remove or reduce a substantial disadvantage related to someone’s disability. In order for the duty to make reasonable adjustments to arise, an individual must show that they have a qualifying disability. Under the Equality Act, a person will be deemed to have a disability if they have a “physical or mental impairment” and the impairment “has a substantial and long-term adverse effect on their ability to carry out normal day to day activities”. There are also some conditions, such as cancer or multiple sclerosis, that are automatically classed as a disability and are therefore protected by law.

There is not a prescribed list of reasonable adjustments, but examples include altering an employee’s hours of work or providing information in an accessible format. However, there is not a “one size fits all” approach to reasonable adjustments and it is important that reasonable adjustments are tailored to the needs of the individual. Failure to consider and implement these adjustments can lead to claims of discrimination and unfair dismissal. Further information, including a non-exhaustive list of potential adjustments, can be found in the Equality and Human Rights Commission Employment: Code of Practice (at Chapter 6). A breach of the Code of Practice can be used as evidence in legal proceedings brought under the Equality Act and taken into account by Employment Tribunals where it is relevant to do so.

Employers do not have the ability to justify a failure to make reasonable adjustments under the Equality Act. Where the duty applies, the question of “reasonableness” is the only factor determining whether an adjustment should be made. Whether a requested adjustment is “reasonable” will depend on the circumstances of the case. When making this determination, employers should take into account a range of factors, including whether the adjustment is affordable, practical to make and whether the adjustment will be effective in reducing or removing the disadvantage that the disabled employee faces etc.

Rentokil Initial UK Ltd v Miller  

The extent of an employer’s duty to provide reasonable adjustments was considered in the case of Rentokil Initial UK Ltd v Miller.

The claimant was a pest control technician for Rentokil but was unable to continue working in his role after he was diagnosed with multiple sclerosis. He subsequently applied for an alternative role in the same company as a service administrator, but performed poorly in the written tests and was dismissed. The respondent did not provide any retraining to the claimant to enable him to stay at the company and did not consider offering him the role of a service administrator on a trial basis.

The claimant brought a claim, among others, for a failure to make reasonable adjustments under the Equality Act. The EAT upheld the tribunal’s finding that the respondent could have permitted the claimant to undertake a four-week trial period in the service administrator role. It determined that despite the respondent’s concerns about his performance in the written tests, the claimant had relevant experience for the alternative role, and a trial period would have established whether he could actually fulfil the role. The EAT found that if a trial period had been offered to the claimant, there was a real prospect of avoiding the disadvantage related to his disability, as there was a 50 per cent chance that he would have been offered the new role permanently. As the claimant was an existing employee, he was also entitled to be treated more favourably than external candidates.  

This case confirms that a trial period can be used as a reasonable adjustment for a disabled employee. As a result, employers should consider their internal processes to allow for trial periods in the appropriate circumstances. This does not mean that all disabled employees must be offered a trial period in an alternative role if they can no longer perform their original role. For example, this would not be appropriate if the employee has none of the necessary skills or experience to carry out the alternative role. However, employers should assess whether additional training and/or a trial period are appropriate adjustments to make in the circumstances.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2024