What constitutes 'reasonable ajustments' under the Disability Discrimination Act?

The following two recent and very different cases provide a useful insight for employers into what constitutes ‘reasonable adjustments’ under the Disability Discrimination Act 1995 (DDA) and subsequent amendments.

A definition of ‘reasonable adjustments’ is any step or steps an employer can take to prevent arrangements made by them, or physical features of premises occupied by them, from putting a disabled person at a disadvantage in comparison with a non-disabled person.

The first case highlights that cost can be a very real factor in determining what is reasonable and what is not reasonable. The second shows that an employer cannot make generalised and stereotypical assumptions about what is and what is not reasonable, but must undertake an objective assessment of individual circumstances.

O’Hanlon v HM Revenue & Customs 2006

In this first case, Mrs O’Hanlon, an employee of HM Revenue & Customs (HMRC), was absent from work for 365 days. The sick pay policy provided for 26 weeks’ absence on full pay, 26 weeks’ absence on half pay and thereafter absence at the pension rate of pay. Due to the level of her absence Mrs O’Hanlon’s pay was reduced to the pension rate.

Mrs O’Hanlon claimed that her employer had failed to make a ‘reasonable adjustment’ under the DDA, arguing that HMRC should have amended its sick pay policy to keep her on full pay.

The Employment Appeal Tribunal decided that although the reduction in her pay did place her at a substantial disadvantage as compared with a non-disabled person, it was not a reasonable adjustment to require her employer to pay her full pay. This was on the following basis:

• the cost of a change in HMRC’s policy would cost an additional £6 million per annum
• in cases where the reasonable adjustment being argued was generic (ie an adjustment for any disabled employee rather than a particular employee in a particular job with a particular condition) it was relevant to look at the costs of making the adjustment across the board for all disabled employees
• the purpose of the DDA was to provide an incentive to disabled employees to work (full sick pay would be a disincentive) and to assist in the integration of disabled employees into the workplace.

Tudor v Spen Corner Veterinary Centre Ltd

In this case, Ms Tudor was employed as a veterinary nursing assistant and receptionist. She suffered a stroke and became blind after which the Veterinary Centre dismissed her claiming that no adjustments could be made to accommodate her disability. In April this year, the Tribunal found in her favour on the basis that:

• the employer had made generalised and stereotypical assumptions about Ms Tudor’s condition, the duration of her disability and its effect and they had done this without proper consideration of the circumstances
• they did not have a meeting with the Claimant, seek her input or refer to a medical report, all of which amounted to direct discrimination on the grounds of her disability
• they had failed to consider reasonable adjustments to the premises and workplace including general tidying, use of tactile labels, standardisation of storage areas and the use of adapted software which would have received up to 80% funding by Access to Work.