20/06/2024
I Am A Disabled Employee – Can My Employer Refuse To Make Reasonable Adjustments?
We are often contacted by disabled clients who have sought reasonable adjustments from their employer to support them at work. Unfortunately, for many clients, their employers have refused to make those adjustments leaving them in difficulty. Read on for more information.
Your Request For Reasonable Adjustments – Put It In Writing!
When we are assisting disabled clients, we often discover that the requests made for reasonable adjustments do not provide sufficient information and/or do not make clear that it is a request in respect of the employer’s duty under the Equality Act 2010. This can then cause problems about the status of any request and what was known or understood; such problems being compounded if our clients then pursue Employment Tribunal litigation. The situation gets even more difficult if the request has been made informally and there is no clear record of what was being asked for or why.
To avoid these arguments and support any future Employment Tribunal claim, the best way to make your request for reasonable adjustments is in writing if at all possible. Read on for what you should include in your request.
1. Make Sure Your Request States You Are A Disabled Person And What Your Disabilities Are!
The definition set out in the Equality Act states that you are disabled person if you have a ‘physical or mental impairment which has a long term and substantial adverse effect on your ability to carry out normal day to day duties’. For more information about that definition, please see our website at https://lincslaw.co.uk/blog/are-you-a-disabled-employee/
In your request for reasonable adjustments, it is important to be clear how and why you are a disabled person. Particularly, you should state what your disabilities are, how long you have had them, any formal diagnosis etc.
One of the many issues in relation to reasonable adjustments is what knowledge your employer had or has of your disability. The Equality Act 2010 considers what the employer actually knew. Also, what they should have known from the information they had (attendance records etc). This would be constructive knowledge.
Although constructive knowledge can be relied upon, it is fraught with obvious difficulties. Therefore, if you are seeking reasonable adjustments from your employer, we would suggest your written request should give your employer information about those disabilities. This avoids any arguments later about whether or not your employer knew or should have known that you were a disabled person.
From our experience, difficulties in relation to this element tend to come from assumptions that clients make about their employer’s knowledge. One particular client had a physical disability which affected his mobility. However, the reasonable adjustments he was seeking related to a deterioration in his mental health and the support he needed at work for his mental health disability. Whilst our client’s physical disabilities were documented throughout with Occupational Health Reports and similar, my client had given next to no information to his employer regarding his mental health disability. Therefore, when considering reasonable adjustments, the employer was only considering the help our client would need for his mobility difficulties. He became extremely frustrated with them for not taking into account and assisting him with the adjustments he needed for his mental health disability.
By the time my client met with us, he was at loggerheads with his employer. When we went through the situation, it became clear that this was an issue of miscommunication which, in fact, resolved very swiftly once we provided the employer with information about our client’s mental health impairments and what adjustments he was requesting in relation to the same.
The moral of the above story being that if you do require reasonable adjustments for a particular impairment or disability, it is always best to be absolutely sure your employer has knowledge of that disability.
2. Identify The Problems Your Disability Causes You At Work
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments where the disabled person is suffering ‘a substantial disadvantage compared to those who are not disabled’.
Following on the from the identification of disabilities above, the next step is, therefore, to identify the substantial disadvantage (ie problems) you are suffering at work due to your disability. Unfortunately, this is a step which is often missed by employees. They go straight to making a demand for the adjustments they want without explaining or identifying what substantial disadvantage they are suffering at work.
Sometimes, the substantial disadvantage is easy to identify. We have assisted clients with mobility difficulties who were disadvantaged by stairs and inaccessible areas at their workplace. They had to put their health and safety at risk to undertake their role and the stairs meant that they were excluded from some work events and meetings. We have also represented clients who have bowel conditions and are disadvantaged by the toilet facilities at their employer’s premises etc.
It can sometime be a little more difficult to identify a substantial disadvantage for mental health impairments. However, extreme reactions to the way information or instructions are provided is a frequent topic, as is difficulty processing certain types of information etc.
Obviously, it is very difficult in a general article such as this to list all possible substantial disadvantages any disabled employee could suffer. However, if you are going to request reasonable adjustments from your employer, then taking the time to think about your disability and how their current physical work place or work practices put you at a substantial disadvantage will help you when considering the next step below.
3. Ask For The Reasonable Adjustments And Be Clear How They Will Solve The Problem
There is a great deal of information available on government websites etc talking about the types of adjustments either to the physical layout or equipment provided in a workspace or, alternatively, to the practices such as hours of work, timing of breaks etc. However, it is incredibly important that whatever reasonable adjustments you are seeking do actually resolve or lessen the substantial disadvantage you have identified you are suffering.
This is often where employers and employees find themselves in dispute. For physical impairments, the connection between the reasonable adjustment and the substantial disadvantage is often straightforward. Taking the example of our client with mobility difficulties and a workplace with stairs, requesting lift access or rearrangement of meetings to the ground floor etc quite obviously lessens the substantial disadvantage identified.
For mental health impairments, this will be more difficult. A previous client who suffered with post traumatic stress disorder found it extremely difficult to work in an environment that he could not control. He was unable to cope with sudden noises or many people talking at once which meant he struggled in his employer’s open plan office. Being in the office substantially disadvantaged him as he was simply unable to work putting him at risk of management action.
We assisted our client in identifying the substantial disadvantages he was suffering at his employer’s place of work. We also assisted him in seeking and achieving reasonable adjustments from his employer to allow him to work from home where he was able to have much more control over his environment.
What Happens After My Written Request For Reasonable Adjustments?
There are various things that could happen. Your employer may just agree the changes you have requested. They could ask to meet with you to discuss the reasonable adjustments. They could also ask you to attend an Occupational Health assessment.
It is important to engage with your employer and, ideally, be flexible where possible. As above, the idea of the reasonable adjustments is to resolve the ‘substantial disadvantage’ you are suffering as a disabled person at work. There may be different ways to do that or a variety of changes that assist you. Also, if there are substantial changes needed (often when physical moves or building work is needed) you may well agree a number of temporary reasonable adjustments pending more permanent solutions.
What If My Employer Ignores My Request For Reasonable Adjustments?
Give your employer a reasonable opportunity to respond to your request. However, if after two weeks there is no proper response or progress, then you should consider raising a Formal Grievance. For more information please see our website at https://lincslaw.co.uk/blog/how-to-raise-a-formal-grievance
If matters still do not move forward, you may consider pursuing a claim under the Equality Act 2010. For more information please see our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
What If My Employer Refuses My Request For Reasonable Adjustments?
If your employer refuses to make reasonable adjustments, the issue is going to be why. It is important that you ask for a written response explaining why the reasonable adjustments have been refused. The most common reasons for refusal are:
• That the adjustments are not ‘reasonable’. This is linked to the size of your employer and, of course, the resources and control they have;
• That your employer wants to make different adjustments than the ones you requested;
• That your employer does not agree that your disability causes you a ‘substantial disadvantage’; or,
• That your employer does not agree that the adjustments you have requested will, in fact, resolve the ‘substantial disadvantage’ you are suffering.
If you are not happy with your employer’s decision you should first raise a grievance (please see our website at https://lincslaw.co.uk/blog/how-to-raise-a-formal-grievance ).
After that, if you are still not satisfied, you should then consider lodging an Employment Tribunal claim (For more information please see our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Time Limits For Employment Tribunal Claims
Please be aware of your time limits. As a general rule, you must start the litigation process by initiating ACAS Early Conciliation within three months of the act, omission or incident your claim is about. More information about ACAS Early Conciliation is available on our website at https://lincslaw.co.uk/blog/acas-early-conciliation-what-is-it-all-about/ If your claim is not settled you will have at least a month from the date of your ACAS Early Conciliation Certificate to issue your claim at the Employment Tribunal.
Please note that the time limits apply even if you are going through a request or grievance process with your employer. Many clients find themselves ‘timed out’ and having to argue for the Employment Tribunal to agree to allow them to pursue their claim as they were waiting on internal procedures. Please don’t put yourself in this position.
If your employer has refused reasonable adjustments, then it is relatively easy to calculate your time limit as it would run from the date the refusal was communicated to you. For example, if you were told they would not make reasonable adjustments on 30 June, you would need to begin ACAS Early Conciliation on or before 29 September.
The situation gets more difficult if your request is ignored and/or your employers simply keep delaying your request and your grievance. Although there may be arguments for various dates, and you might have some leeway, the safest course (if possible) is to run your time limit from the date of your request. This stops any argument that your claim is ‘out of time’ and avoids you having to request the Employment Tribunal exercise their discretion to allow you to pursue your claim. If you have already gone past this deadline, please take action as soon as possible and you are welcome to contact us for a free enquiry on 01522 440512.
Lincs Law Employment Solicitors Can Help You
If you are a disabled person struggling to get the reasonable adjustments you need at work, please call us on 01522 440512 for a free enquiry and one of our Employment Solicitors would be very happy to help. Alternatively, for more information about disability discrimination generally, please see our website at https://lincslaw.co.uk/services/employees/workplace-problems/disability-discrimination/
Sally Hubbard
Managing Director, Specialist Employment Law Solicitor
Lincs Law Employment Solicitors
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