Speaker 1: I'm really pleased to welcome Graham Anderson onto the channel. Graham is a barrister from Lyttelton Chambers and one of Graham's key practice areas is employment law. Graham is going to talk to me about disability discrimination and in particular the duty to make reasonable adjustments. Thank you so much for joining me, Graham.

Speaker 2: Matt, thank you very much for having me. I wanted to talk today about the duty on employers to make reasonable adjustments. It's a legally quite tricky topic but it's one that comes up an awful lot. It's very easy to say that employers are under a duty to make reasonable adjustments for disabled employees but actually unpacking what that means is legally quite a complex thing. Maybe the best way to start the discussion is to try and explain a bit about what this obligation is not. The obligation on an employer to make reasonable adjustments is not an obligation to just do anything a disabled employee wants them to do or something that the disabled employee thinks would be useful or helpful. This is something that very often comes up in the cases that I deal with day to day and I'm sure you do as well. It's not an obligation to think about reasonable adjustments. You very often see claims where someone alleges, well, my employer fails to even consider X, Y and Z. As I say, it doesn't matter if you fail to consider it, you've got to either do it or you don't. If you were under an obligation to do it and you didn't, you're in breach of it. Finally, it's not a duty to, in a broad sense, act in the interests of a disabled person. A case that we very often find ourselves talking about is a case called O'Hanlon. That was a case that basically says that employers aren't under a duty, for example, to modify their sickness absence policy and in particular entitlements to sick pay for disabled people because the whole philosophy of the duty to make reasonable adjustments is about enabling disabled people fully to participate in work. It's not about paying disabled people any differently to non-disabled people if they're not working. Hopefully I've cleared the ground a little bit in saying what the duty to make reasonable adjustments is not. But what is it? Well, the duty arises in three different scenarios. Two of them are pretty easy to deal with and discuss. The last one is a bit more complicated. The first scenario, an easy one, is when a physical feature of the employer's premises put a disabled person at a substantial disadvantage. The employer is under an obligation to avoid that substantial disadvantage. You can very easily imagine that sort of case. Say, for example, your office is in an old building. There's not a ramp. There are only steps. A disabled employee is in a wheelchair. Plainly, the steps put them at a disadvantage. The way of avoiding that disadvantage, the reasonable adjustment, put in a ramp. Pretty simple, pretty straightforward. You don't often find cases like that in tribunals. Similarly, the duty arises where, but for an auxiliary aid, the disabled person would be at a substantial disadvantage. The obligation is to provide the auxiliary aid. Again, very easy to imagine examples like that. A deaf person or a person with hearing difficulties, if they would be assisted by an induction loop, then the obligation is to provide that induction loop. Pretty easy. You don't often see cases like that in tribunal. It's the third one. Employment lawyers up at night. And this is where the third scenario, a provision, criterion, or practice of the employer, applied by the employer, rather, puts a disabled person at a substantial disadvantage in comparison with those who don't share a disability. And again, then the obligation is to take such steps as are reasonable to have to take to avoid the disadvantage. So let's unpack that one, because that's the really difficult one that causes problems. Before we even get into that definition, of course, you've got to be a disabled person in order to bring that claim. What does that mean? Section 6 of the Equality Act, you've got to have a physical or mental impairment that has a substantial adverse effect on your ability to carry out normal day-to-day activities. So you've got to be disabled as the Act defines that. Two additional things. Your employer has to know you're disabled. And then, and this is often a bit more tricky, your employer has to know about the substantial disadvantage that you're going to then complain about in relation to the reasonable adjustments. So those are the sort of preliminaries before you actually get to the test. But what about this concept of a provision, criterion, or practice? It can actually be quite slippery. You get in the old case law, I say old case law, some of the older cases, detailed description about precisely what a provision might mean, what a criterion might mean, what a practice might mean. The courts have been quite clear that the Equality Act is all about eliminating discrimination in the workplace. So the tribunals have to give a broad interpretation to what a provision, criterion, or practice can mean. But it's not limitless. It does not, for example, necessarily encompass one-off decisions. What that doesn't mean is that a one-off decision could never be a provision, criterion, or practice. In the lingo, we tend to say PCP. A one-off decision could be a PCP, but usually that's where the decision is evidence of how the employer would behave more broadly towards other people. I think a really good way of thinking about this is to look at some of the cases where the tribunals have found that there is not a PCP, and usually that will be instances where a claimant, the person bringing the claim, confuses a PCP with a criticism of the employer per se. What I've seen quite a few times, for example, will be things like, oh, it was a provision, criterion, or practice that HR was very slow in responding to things, or HR was very inefficient. What you're saying there is that actually you were just, it's just a criticism of HR in your particular case, or HR was hostile, or HR was closed-minded, or something. Unless you can say that actually the employer had embarked upon a practice of being hostile, or lazy, or inefficient, or useless, or something, you're not going to get very far, and you see that quite a lot in the cases. In principle, when you are going to allege a PCP, it's got to be something that you can say applies to a group of people in the workplace who are disabled and non-disabled, and it put the disabled group at a disadvantage in comparison with the non-disabled group, and it put me, the person bringing the claim, at that disadvantage as well. So, you can quite easily imagine examples of that that come up quite often in the workplace. So, for example, it's not uncommon for an employer to have a disciplinary policy that says if you are absent so many times in a month, or so many times in a six-month period, you'll get a first warning, and then you'll get a final warning, then you might be dismissed. And they're going to apply that to the whole workforce. And, of course, that's perfectly normal. But if you're a disabled person who, say, because of their disability, has to attend medical appointments more frequently, or is just more likely to be absent because of the effects of the disability, then, of course, the provision, the practice, is being applied to everybody, but it's putting me at a disadvantage because of the disability, because I'm going to be off more often. So, the question then becomes, well, what is an adjustment it is reasonable to have to take in order to avoid that disadvantage? And a very common thing that, you know, when we as lawyers are advising employers, or when you are in tribunal, you see this a lot, employers will disapply disability-related absences from that disciplinary procedure. Simple example, but one that shows how the system works. You can imagine it in a slightly different way. Here I am sitting at my desk. If I had a back problem that amounted to a disability, I might say, well, your PCP of requiring me to sit at this desk for, you know, hours at a time puts me at a disadvantage because of my back problem. Well, what steps are reasonable for you to have to take in order to avoid that substantial disadvantage? Well, it could be giving me a new chair. It could be giving me breaks. It could be getting me a standing desk or something like that. And you can see quite easily how these examples work. The difficulty that can often arise relates, for example, to whether or not an adjustment is reasonable to have to take. Tribunals are very used to dealing with cases like this, and there will be some adjustments that they are very used to hearing about and some that they are not so used to hearing about. So that's something that you would bear in mind when bringing a claim. But to round off the discussion about reasonable adjustments, I think it is really important to bear in mind, as I said at the beginning, saying that an employer is under a duty to make reasonable adjustments is something that is very easy to say. But if you are going to embark upon a claim like that, it is of the utmost importance that you sit down and you think for five minutes about exactly what am I saying is the PCP, exactly what am I saying is the substantial disadvantage that I am under by comparison with people who aren't disabled who you apply this PCP to. And then what reasonable adjustments do I say it was reasonable for the employer to have to take in my case. One last point about that, and this is something that comes up quite a lot, the courts have been pretty clear that actually it's not for an employee to have to suggest reasonable adjustments. And I mean that in two ways. First of all, it would be no defence to my employer when I, with my back problem, who need a standing desk, didn't think about a standing desk. If we got to tribunal and they turned around and said, oh, well, Graeme never mentioned that he wanted a standing desk, they wouldn't get very far with that. It also works in another sense, which is when you bring a claim, you're not necessarily under an obligation to say, as a matter of pleading your case, well, the menu of reasonable adjustments you ought to have made is A, B, C, D and E. It's a good idea to do that, especially if it's a pretty obvious one. Tactically speaking, if you can say the standing desk is the one that you should have done, that's a pretty clear prism for the tribunal to see the claim through. But it's not fatal if you don't. However, what can happen is if you're at a trial at the end of some litigation and in the hearing room, six months, nine months, two years into a piece of litigation, for the first time, the words standing desk are used in the trial, the employer in the case might well be within their rights to say, hang on a second, this has never been mentioned. We have not had a chance to even think about whether or not that would have been a reasonable adjustment. I appreciate a standing desk is probably not a particularly difficult one, but often there are more involved reasonable adjustments that are suggested and a tribunal might think it's not fair as a matter of procedure for a reasonable adjustment to be suggested at the very end of the line when the employer hasn't had a chance to even think about it. But those are tactical points. The underlying point is that it's not for an employee to have to raise reasonable adjustments, but of course it's a good idea at work or in litigation. So those are the things I wanted to say about reasonable adjustments. They give rise to difficult claims, but if you think about them, the law is pretty logical and pretty clear.

Speaker 1: Thank you so much for sharing your knowledge and explaining the duty to make reasonable adjustments in such simple terms. That's great. And thank you so much for coming on the channel. Thank you so much for having me. It's been great. That's great. Thank you, Graham. For more information, do browse this channel and visit my website. Remember that this video is for guidance only and should not be relied upon for specific advice. Also, the law can change. And finally, please subscribe to my channel for updates.