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Making Reasonable Adjustments in every case

Meredith Hurst Wednesday, March 7, 2018

Whether an employer has met its duty to make reasonable adjustments will depend on the facts in each case - but as Mitchell v Marks and Spencer illustrates, even the most pro-active equal opportunities employer should resist the temptation to rest on its laurels when it comes to disability discrimination.

What are reasonable adjustments?

Reasonable adjustments are changes to the workplace designed to prevent people with disabilities or medical conditions from being substantially disadvantaged, by physical barriers or other working conditions, in comparison to persons who are not disabled. Employers have a duty to make reasonable adjustments to the work environment for employees with disabilities under the Equality Act 2010. Even companies that have a strong reputation for providing equal opportunities for employees with disabilities can be found in violation of the Equality Act 2010 if they do not provide reasonable adjustments consistently, as was the case in the recent employment tribunal of Mitchell v Marks and Spencer plc [2017] UKET 2200625/2017.

Some examples of reasonable adjustments include: 

  • Installing certain equipment such as a wheelchair ramp, or an adapted computer keyboard for someone with arthritis or a visual impairment
  • Allowing flexible working hours, or working from home to assist employees who become disabled to gradually return to work
  • Making adjustments to the recruitment process so that potential employees with disabilities can be considered for a role.
The Equality Act and Reasonable Adjustments

The Equality Act 2010 Section 20 establishes a duty for employers to take reasonable steps in three situations:

  • To avoid a disadvantage when a provision, criterion or practice of the employer puts a disabled employee at a substantial disadvantage compared to persons who are not disabled (Section 20(3)).
  • To avoid a disadvantage when a physical feature of the work environment puts a disabled employee at a substantial disadvantage compared to persons who are not disabled (Section 20(4)).
  • To provide an auxiliary aid where a disabled person would, but for the provision of that auxiliary aid, be put at a substantial disadvantage compared to persons who are not disabled (Section 20(5)).

Section 21 (1) of the Equality Act 2010 states that failure to comply with any of the above three requirements infringes upon an employer's duty to provide reasonable adjustments. Such a failure to comply is identified in Section 21(2) as discrimination. According to Section 212 (1) of the Equality Act, the disadvantage has to be "more than minor or trivial" before it becomes "substantial" to the point where the employer is required to provide reasonable adjustments.

The recent employment tribunal case of Mitchell v Marks and Spencer  was a reasonable adjustments dispute under Section 20 (3) of the Employment Act 2010. The case concerned the provision, criterion or practice relating to the accessibility of staff lavatories, and specifically the failure to promptly provide a disabled employee with a key to the customer lift.

The facts in Mitchell v Marks and Spencer

Mr Mitchell worked as a fixed term Customer Assistant for the Marks and Spencer, at its Covent Garden store location. He was recognised as having a disability: he suffered from a reduced bladder. This meant he had to use the lavatory much more frequently than the average person - between once or twice per hour but occasionally as often as every ten minutes. Mr Mitchell had made his employer aware of his disability upon recruitment.

Mr Mitchell mostly worked on the ground floor and the only staff toilet facilities available were on the second floor. The basement and second floor were for employees only. There were stairs to all floors and an escalator between the ground floor and first floor. There was also a goods lift and a (much faster) customer lift that could be used to access the staff-only floors with a key. Lift keys were provided to some members of staff specifically because of reasonable adjustments, to make it easier for them to access the basement and second floor.

Mr Mitchell made his employer aware that he was going to have an operation that would require him to use the customer lift to access the staff toilets on the second floor, as he would find it more difficult to walk up the stairs. A new key for Mr Mitchell to use the customer lift was not provided for ten days after his return to work. During this time, Mr Mitchell used the stairs for 7 four-hour shifts.

How was the Equality Act 2010 applied in Mitchell v Marks and Spencer?

Mr Mitchell, representing himself at the tribunal, argued that the failure to provide a key for the customer lift was a failure to comply with Section 20(3) of the Equality Act 2010, because this provision, criterion or practice had placed him at a substantial disadvantage compared with a person who is not disabled.

Marks and Spencer highlighted its general strong reputation as an equal opportunities employer. Its counsel also pointed out the options of the goods lift and the stairs. The Respondent argued that this made the disadvantage suffered by Mr Mitchell less than substantial, and therefore that the situation did not require reasonable adjustment under Section 20 of the Equality Act 2010. The Respondent argued that it had acted reasonably in a genuine belief that a new key would be cut in several days, and that it was not fully aware of Mr Mitchell's difficulties climbing the stairs at that time.

The Judgment

The tribunal found that Marks and Spencer plc. had violated Sections 20 and 21 of the Equality Act 2010. Mr Mitchell had been put at a substantial disadvantage by the failure to to provide the reasonable adjustment of a customer lift key for 10 days. The Respondent was ordered to pay £1000 of compensation to Mr Mitchell for resulting injury to feelings. 

Don't rest on your laurels

Although reasonable adjustment cases will always depend on the facts of the individual situation, this case perhaps illustrates that no employer, however proactive and however anxious to do the right thing for its employees, should be complacent. Other employees had been provided with a key to the customer lift to meet the duty to make reasonable adjustments, so there was an inconsistency in Mr Mitchell's treatment. Mr Mitchell had also told his employer before the operation that he wouldn't be able to use the stairs.

This case shows that even when a company has a strong reputation as an equal opportunities employer, it can still violate the Equality Act 2010 if it is inconsistent in providing reasonable adjustments for employees with disabilities. 

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