Visually impaired British Paralympian skiing medallist Jade Etherington, who retired from competitive skiing last year, has recently expressed her concerns about her struggle to find a position as a newly qualified teacher due to her disability and the adjustments that would be necessary to accommodate it.
Jade has been training to become a secondary school geography teacher. Her vision impairment means that she is likely to need a support worker to assist her as well as, we suspect, other adjustments. Nearly all employers that we deal with appreciate the legal requirement to make reasonable adjustments for disabled employees. There is however considerable consternation and concern about the lack of clarity or any hard and fast rules as to where employers can draw the line between what is and what is not reasonable.
The difficulty is that no two disabled people are the same. Their needs differ as do the scale, nature and cost of the adjustments that may be required. In addition no two employers are the same. They differ in size, business type, financial resources, staffing resource etc. To further complicate matters both the needs of the employee and the resources and business environment of the employer are often a moving target, constantly evolving over time.
Finally the test of reasonableness is objective and to be determined by the tribunal. It is not whether the employer believed their actions reasonable but whether the court does. This makes it even harder for employers, faced with very serious legal and financial consequences if they get this wrong, to know where to draw the line.
So what principles of general use can employers consider? It is difficult to consider all of the relevant aspects of this topic as cases significantly vary from one individual to the next, however amongst the most common factors likely to apply in most adjustment cases are:
1. The extent to which the adjustment will reduce or remove the disadvantage;
2. The extent to which the adjustment is practical
3. The financial and other costs of making the adjustment,
4. The extent to which the step will disrupt the employer’s activities
5. The financial and other resources available to the employer
6. The availability of external financial or other assistance
7. The nature of the employer’s activities and the size of the undertaking
The cost of the possible adjustments, together with the financial and other resources available to the employer is often the most pressing concern for employers. The Equality and Human Rights Commission (EHRC) Code warns that “even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms – for example, compared with the costs of recruiting and training a new member of staff – and so may still be a reasonable adjustment to have to make”. The reasonable adjustments duty clearly anticipates that employers might have to incur reasonable additional costs in order to alleviate disadvantages suffered by disabled employees.
In a recent case called Cordell the court offered the following guidance. It said that cost is “one of the central considerations in the assessment of reasonableness”, although it must of course be weighed with other factors including the degree of benefit to the employee, the other points mentioned in the EHRC Code of Practice as well as other factors. These might include:
(a) The size of any budget dedicated to reasonable adjustments (though this cannot be conclusive because the size of the budget is determined by the employer).
(b) What the employer has chosen to spend in what might be thought to be comparable situations.
(c) What other employers are prepared to spend.
(d) Any collective agreement or other indication of what level of expenditure is regarded as appropriate by representative organisations.
The court unhelpfully clarified “there is no objective measure that can be used to balance what are in truth two completely different kinds of consideration – on the one hand, the disadvantage to the employee if the adjustments are not made and, on the other, the cost of making them”. Nor is there any “objective measure for calibrating the value of one kind of expenditure against another”. Tribunals must “make a judgment, ultimately, on the basis of what they consider right and just in their capacity as… an industrial jury”. Unfortunately, for employers struggling for certainty and clarity, there is no one set of parameters or limits that can be applied and each case has to be assessed on each occasion.
Colin Smith is an employment partner at law firm Brachers