04 Feb 2020
An employer recently called the Croner advice lines and asked this question:
“If I make a reasonable adjustment for one employee, do I have to make it for everyone else?”
And I felt compelled to answer it in the form of a blog post. Largely because it touches on several areas of HR and employment law that are too often misunderstood.
It’s clear what the thought process is behind the query. Discrimination is, after all, unequal treatment of someone with a protected characteristic. If you make a reasonable adjustment (RA) for one person—aren’t you treating them differently?
It’s not quite discrimination. Not in the legal sense. To understand why, we need to look at the law around discrimination and RA.
What is a reasonable adjustment?
A person with a disability or impairment is at a disadvantage. The balance is tipped in favour of the rest of your employees. To rebalance the scales, you need to make an adjustment. Once you have, the balance is level.
There are lots of ways to minimise or remove employees’ disadvantages, including:
- A phased return to work
- A ramp for a wheelchair
- A special keyboard for arthritis
- Flexible working hours
What makes the change ‘reasonable’ is dependent on the case. And, your resources. A good way to judge this is to ask the following questions:
- Is it practical?
- Can I afford it?
- Do I have the resources to provide it?
- Will it be effective?
- Will it have an adverse impact on the health & safety of others?
The size of your organisation will also be a factor. What’s reasonable for a large organisation might not be for a small, family-run business.
If an employee requires an adjustment to continue working for you, you must at least consider it. And, if it’s practical, you must implement the change. This is your duty under the Equality Act 2010.
What is (and isn’t) discrimination
If you’re unsure, you need to consult The Equality Act 2010. It specifies what a protected characteristic is and the difference between direct and indirect discrimination. When considering RAs, the characteristic you need to take into account is disability.
It’s possible to discriminate on the basis of disability directly or indirectly.
Direct discrimination would be turning a candidate down for a job purely because you don’t want to have to make reasonable adjustments.
Indirect discrimination would be asking all employees to move their offices upstairs without making it accessible to those who are physically disabled.
Perhaps you’ve figured out the difference between these two examples, but if you haven’t, here it is:
Direct discrimination is when someone is treated less favourably because of their disability. Indirect discrimination is when a policy or procedure that applies to all puts a disabled employee at a disadvantage.
An employee who feels the need to request a reasonable adjustment could argue that they’re facing indirect discrimination. And, if you refuse to even consider making adjustments, employees are within their rights to make a discrimination claim.
But don’t I have to make an adjustment for everyone?
No. A reasonable adjustment should ensure an employee with an impairment has equal opportunities at work. It shouldn’t provide an advantage.
They word to remember here is ‘reasonable.’ Any adjustment that calls into question whether or not you need to provide it to all employees is unlikely to be reasonable.
That said, a key aspect of discrimination is establishing a comparator. The individual needs to show that they are being treated less favourably than someone who does not have their PC because of this PC. A non-disabled employee could not claim that they were being treated less favourably than a disabled employee in this situation. Why? Because they wouldn’t have a PC to refer to.
It’s important to be consistent with RAs but no two employee conditions are likely to be the same. Each one is likely to require different adjustments and different support.
If you’re unsure whether you need to make an adjustment, or if it’s a reasonable one, speak to a Croner expert today on 01455 858 132.
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