Disability Discrimination – How long can you delay making a reasonable adjustment?
Employment Solicitor and Law Lecturer Ian Winrow considers the decision in a recent disability discrimination case.
In my many years of working as an Employment Law Solicitor and Citizens Advice Bureau Advisor, disability discrimination is unfortunately something I’ve come across repeatedly.
It seems that employers often don’t understand their obligations in law and either won’t employ a disabled worker (which is disability discrimination in itself) or expect them to ‘just get on with it’ rather than make reasonable adjustments to make them comfortable at work.
What are the employer’s obligations?
The Equality and Human Rights Commission sums up the duty very clearly:
“The duty to make reasonable adjustments aims to make sure that as a disabled person, you have, as far as is reasonable, the same access to everything that is involved in getting and doing a job as a non-disabled person.”
To comply, an employer must take all reasonable steps to remove, reduce or prevent the obstacles presented to a disabled worker or job applicant. The word ‘reasonable’ does throw in some flexibility and what is reasonable will depend on speed, available funds and size of the organisation, but in most cases reasonable adjustments are easy and involve relatively small changes.
So how soon should these adjustments take place?
A recent case highlights how a very small adjustment can make a worker more comfortable and why undue delay in making a small adjustment can be considered discriminatory.
In Mitchell v Marks and Spencer plc, an employee needed to use the bathroom more frequently than other workers because of his disability.
In advance of an operation, the employee had asked M&S to provide him with a customer lift key to ensure he could access the toilet quickly when needed. The toilet was located on another floor and the employee had been given access to the goods lift, but this lift was prone to delays if in use by other departments.
The employer did not provide the key until 10 days after the operation, despite the cost of a new customer lift key being only £3 and spare keys were available. The tribunal heard that employee had to use stairs on several occasions and this caused him pain and difficulty over the 10 day period, after which he was given a key.
The tribunal agreed that having a key for the customer lift would have made a difference to the claimant in terms of “speed, reliability and convenience”, and accepted the claimant was inconvenienced.
In finding for the claimant, the ET concluded:
“in all truth there can be little excuse or explanation for the Respondent as an organisation, in the circumstances, not providing the Claimant with a key for 10 days when there were keys available and when the cost of cutting a further key was agreed to be £3.”
The claimant was awarded £1,000.00 for injury to feelings, a sum at the lower end of the scale due to the duration of the discomfort and the lack of malice on the part of the employer, however this does illustrate the need for employers to act promptly if a suitable adjustment can be put in place immediately.
My advice about making reasonable adjustments for a disabled worker is to simply ask them what they need rather than to assume – and accommodate them wherever possible.