Reasonable adjustments are primarily concerned with enabling disabled workers to remain in or return to work.
Yes, you do. In the Union’s casework experience many of 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’ under the Equality Act 2010 is not reproduced here because, in the NEU’s opinion, both staff and their employers attribute too much importance to it. The definition of disability is very broad and is likely to encompass almost any long standing health condition (diagnosed or otherwise) which 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:-
“In order to avoid discrimination, it would be sensible for employers not to attempt to make a fine judgment as to whether a particular individual falls within the statutory definition of disability, but to focus instead on meeting the needs of each worker…”
Yes, you are entitled to reasonable adjustments at all stages of the recruitment process, as well as at all stages of your employment.
Your entitlement to reasonable adjustments is triggered whenever you are placed at a substantial disadvantage in comparison to non- disabled staff because of:-
- A provision, criterion or practice (PCP); and/or
- the physical features of an employer or prospective employer’s premises; and/or
- 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.
PCPs are broadly defined and include any policies, practices or arrangements operating in your workplace, whether on a formal or informal basis. By way of example, an unwritten rule at your school that all medical appointments must take place at the beginning or end of the school day would amount to a PCP. This unwritten rule may trigger your employer’s duty to make reasonable adjustments if it prevents you from attending a medical appointment mid-morning or in the afternoon and this places you at a substantial disadvantage (e.g. because it prevents you from receiving essential medical treatment).
Physical features include, but are not limited to steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits, internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings and signs.
An auxiliary aid is not defined by legislation, but is described in the Equality and Human Rights Commission’s Employment Code (2011) as including a specialist piece of equipment such as an adapted keyboard or text to speech software and auxiliary services such as a sign language interpreter or a support worker.
You are required by law to compare your treatment to that of staff who are not disabled so that it may be ascertained whether the disadvantage of which you complain arises from disability, or for some other reason unrelated to disability.
To illustrate, take the example at paragraph 1.5. The PCP complained of is the requirement that all medical appointments must take place at the beginning or end of the school day. On the face of it, this is as disadvantageous to non-disabled staff as it is to disabled staff i.e. no one is permitted to have medical appointments at certain times of the day.
However, a disabled staff member who requires essential medical treatment in the middle of the school day for a reason related to their disability (e.g. physiotherapy) will be at a substantial disadvantage when compared to staff members who are not disabled and who do not require essential medical treatment in the middle of the school day.
No, the member of staff whose treatment you compare your treatment to may be hypothetical. You may be entitled to reasonable adjustments, therefore, even if you are the only teacher or member of support staff in service, or all the staff in your employer’s service are also disabled. What matters is the effect the PCP complained of has on you.
You are entitled to keep your health condition confidential if you wish. In the Union’s casework experience it is often members with conditions such as AIDs, HIV and bipolar disorder who are reluctant to disclose the nature of their disability for fear of people’s reaction.
However, if you wish your employer to make a reasonable adjustment, you will need to provide the employer – or someone acting on the employer’s behalf – with sufficient information to carry out that adjustment.
The Union’s advice to members in this predicament is to make their condition and their concerns about being disadvantaged known to an occupational health adviser, or where one is not available, to a HR officer or a recruitment agent, where appropriate. Such individuals will then be in a position to act in strictest confidence and with great sensitivity when advising line managers etc. of the effects of the member’s condition and the reasonable adjustments which are required to be made as a result.
If you require reasonable adjustments to carry out your duties and have applied for a new teaching post, it is normal to feel some trepidation at the prospect of disclosing your condition to a prospective employer. What if you are discriminated against and do not get the job as a result?
Section 60 of the Equality Act 2010 prohibits prospective employers from asking questions about a job applicant’s health before the applicant has been offered the job, except in certain specified circumstances. One of these circumstances is that the prospective employer needs to establish whether the job applicant “will be able to carry out a function that is intrinsic to the work concerned”.
Exactly what that means is a matter for legal interpretation, but the Union believes it sets a very high bar for prospective employers to meet. In any event, whether or not a job applicant is able to carry out a function intrinsic to teaching or working in a school/college is likely to be a matter for a suitably qualified health professional to determine, not a shortlisting or interviewing panel.
If you are asked to complete a pre-employment health questionnaire with your application form you may complete it, if you wish, but are not required to do so legally. You may wish to complete it if you believe that choosing not to complete it may lead a shortlisting panel to fail to ask you for interview. You are encouraged in such circumstances to make a copy of the questionnaire before you return it, as this may be helpful evidence if you believe later on that you have not been shortlisted for interview, or appointed, because of information you disclosed in your questionnaire.
If you are asked about your condition or state of health at an interview, make a note of the questions you are asked and by whom. This may be helpful evidence if you believe you have not been appointed because of information you disclosed during the interview.
Contact the Union’s Advice Line if you believe you have been discriminated against during the recruitment process.
This is a question fraught with difficulty because what is reasonable in one set of circumstances may not be reasonable in another. A good starting point, however, is to consider whether the adjustment in question is likely to remove or ameliorate the disadvantage complained of. The employer doesn’t have to be certain that the adjustment will remove disadvantage – only that it is likely to. Another point to consider is whether the adjustment will enable you to remain in or return to work. The more likely the adjustment is to keep you in work or help you return to work after a period of sickness absence, the more reasonable it is likely to be once other relevant considerations such as cost have been taken into account.
Your employer is entitled to take the following factors into account when considering the reasonableness or otherwise of an adjustment:-
- How effective the adjustment would be in overcoming the disadvantage complained of;
- How practicable it is to make the adjustment;
- The financial and other costs to be incurred by the employer and the extent of any disruption to activities;
- The extent of the employer’s financial and other resources;
- The availability of financial and/or other assistance in making the adjustment;
- The nature of the employer’s activities and size of undertaking.
Your employer must be prepared to justify its reliance on any of the factors highlighted above if it is refusing to make reasonable adjustments.
Disability equality toolkit
Useful tools for reps to help them support disabled members.