Reasonable adjustments: Making work fit

Your rights to reasonable adjustments

Your legal entitlement to reasonable adjustments is triggered whenever you are placed at a substantial disadvantage in comparison to non-disabled staff. This can be due to:

1. A provision, criterion or practice (PCP); and/or
2. the physical features of an employer or prospective employer’s premises; and/or
3. the absence of an auxiliary aid.

The term ‘substantial’ simply means the disadvantage complained of must be more than minor or trivial. It does not therefore carry a particularly heavy burden of proof.

In the Union’s casework experience, many members who are entitled to reasonable adjustments never ask for them or are never recognised by their employer as being entitled to them. This is because they either have a health condition, but they do not consider themselves to be disabled, or because they have not been diagnosed with a medical condition.

The definition of disability is very broad and is likely to encompass almost any long-standing health condition (diagnosed or otherwise) that has a more than minor impact on your ability to work.

The Equality and Human Rights Commission’s Code of Practice on Employment (2011), to which employers must have regard, says:

Asking for reasonable adjustments

There is no obligation on you to ask for adjustments as the duty lies with your employer.

However, to ensure that your employer acts promptly and omits nothing, it is sensible to be proactive by asking for the adjustments you believe you need. If neither you or your employer are sure of the kind of adjustments that may be possible for someone with your condition, you can ask for advice from your GP, your employer’s occupational health physician or an assessor from Access to Work.

GPs and Occupational Health

Your GP should provide your employer with a Fit Note if you are assessed as either unfit for work, or as fit for work subject to support from your employer.

Since most GPs will not have the requisite occupational health expertise to devise a return-to-work plan especially adapted to your needs, you should not look to your GP to help you make the case for reasonable adjustments.

A Fit Note allows your GP to indicate the kind of general adaptations that might help your return to work, but this will help to give your employer only a broad idea of the changes to be discussed with you, your NEU rep and, where appropriate, your employer’s occupational health adviser.

If the GP completing the form believes that a referral to an occupational health specialist would be beneficial, they can write this in the comments box on the Fit Note form. Your GP may choose to make such a recommendation where your case is complex or where your ill-health is work related.

Occupational Health professionals

Guidance from the DfE encourages your employer to make a referral to occupational health whenever there is concern about your health or physical capacity to carry out specified teaching activities.

This concern will be triggered either by incidents at school/college, short-term and intermittent sickness absences or, in most cases, by long-term sickness absence. It is good practice for any employee to be referred to occupational health in such circumstances.

It is important to remember that occupational health professionals are engaged by your employer and not by you. Their primary purpose is to provide your employer with advice about the likely risks presented by your health condition and how any identified risks may be managed.

Despite this, it is always a good idea to discuss with the occupational health professional

1. Your views about the barriers to your full involvement as a teacher or support staff at your school or college;
2. Your view of the causes; and
3. The adjustments you believe are needed to help you return to work and, more importantly, stay in work once you have returned.

Other things to think about when asking for reasonable adjustments:

1. Hidden disabilities can sometimes be treated with scepticism. A letter from your GP explaining your condition and its effects is therefore always useful if your condition is hidden.
2. Educate yourself about your condition by looking up the websites of specialist disability organisations, but remember that you are the best source of information on your own needs.
3. Talk to your employer in positive terms about what you feel you can achieve with the right adjustments in place. If you are not positive about adapting the workplace to your needs, neither will your employer.
4. Be as clear as possible about what adjustments you believe you need. Unclear statements will only serve to confuse and frustrate the process of making adjustments.
5. Employers are likely to want to restrict reasonable adjustments to matters which relate directly to your job. Therefore, seek advice from the Union if you want an adjustment which may be of indirect assistance.
6. Failure to carry out a proper risk assessment is likely to lead to failures to make reasonable adjustments. Therefore, always insist, where appropriate, that a proper risk assessment is carried out.
7. Be aware that your employer might be able to dismiss you while you are on sick leave for a disability related reason or while you have remaining entitlement to sick leave. Incapability is a potentially fair reason to dismiss an employee, although a failure to make reasonable adjustments may make such dismissal unfair and/or discriminatory.
8. If your GP declares you fit for work, subject to reasonable adjustments, you should not refuse to return to work once the adjustments are in place. If you do, it will lengthen your absence and may ultimately reduce the chances of successfully remaining in post. Fight for any additional adjustments you need upon your return to work.

Reasonable adjustments by impairment or condition

The Equality and Human Rights Commission (EHRC) employment code provides a list of the steps that it might be reasonable for your employer to take. They include, but are not limited to:

Making adjustments to premises, e.g. widening a doorway, providing a ramp, stair-climbing chairs or non-slip flooring, moving classroom or corridor furniture, altering lighting, or providing parking spaces for disabled drivers.

Different disabled people will have different requirements, a one-size-fits-all approach is unlikely to be be sufficient. The NEU has compiled examples of good practice based on specific impairments or conditions:

Pay

If you are on long-term sickness absence for a disability related reason, most teachers are subject to the occupational sick pay scheme operating in the Burgundy Book or to similar provisions.

Support staff are not covered by the provisions of the Burgundy Book, but may be entitled to an occupational sick pay scheme either under the relevant Green Book provisions (collective agreements applying to local authority employees) or their own contracts of employment.

If you are absent from work because you are waiting for adaptations to be made to your workplace you should not be placed on sick leave, or suffer a diminution in pay. In such circumstances, you should be placed on medical suspension on full-pay or redeployed to work in an appropriate environment until such time as your regular place of work is made safe for you to start or return.

If you are on a phased return to work, there is no automatic entitlement to full pay. Whether or not full pay is a reasonable adjustment for an employer to make will depend, as always, on the circumstances. However, even if your employer decides that it can pay you only for the days when you actually work, any outstanding occupational and or statutory sick pay may be used to top-up your earnings during your period of phased return.