The legal definition of harassment on grounds of disability, who is protected and the first steps you should take if you think you are being subjected to such harassment.
When can you ask for reasonable adjustments?
If you have a disability which disadvantages you at work, or when you want to apply for a job, employers are obliged to make adjustments which are reasonable in order to prevent you from being placed at a substantial disadvantage compared with persons who are not disabled.
The cost of complying with the duty to make reasonable adjustments falls on your employer and not on you.
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) applied by or on behalf of the employer and/or,
- The physical feature of premises 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.
You do not have to disclose your condition to be entitled to reasonable adjustments. 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.
You are entitled to reasonable adjustments at all stages of the recruitment process, as well as at all stages of your employment.
You may ask for reasonable adjustments even if you haven’t yet been “diagnosed” with a disability. Your employer should not use the absence of a diagnosis as an excuse to do nothing. Once it is clear that your health has deteriorated or is deteriorating, appropriate action should be taken to address any difficulties you may be experiencing at work as a result.
Below are some other things to be mindful of when asking for reasonable adjustments:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
How does the Equality Act define disability?
The Equality Act 2010 defines a disability as a physical or mental impairment that has a 'substantial' and 'long-term' negative effect on your ability to do normal daily activities.
The Act defines long-term in this context as having lasted, or being likely to last for at least 12 months or the rest of the person’s life. Substantial is defined as more than minor or trivial.
Some conditions are automatically treated as a disability under the Equality Act, and these are:
- HIV infection
- Multiple sclerosis
- Severe disfigurement (This does not include tattoos and piercings)
- If you’re certified blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist.
There are some types of physical and mental conditions which might be treated as a disability under the Equality Act depending on the effect they have on your daily life, for example:
- Learning difficulties such as Dyslexia
- Mental health conditions such as Bipolar
- Hearing or visual impairments
- Stress and anxiety
- Mobility impairments
Some conditions aren't covered by the disability definition. These include addiction to non–prescribed drugs or alcohol. To find out about the conditions which aren't covered, download the Equality Act guidance.
Duty to implement reasonable adjustments.
The Equality Act sets out three things employers may have to do to remove the barriers you face because of your disability:
- change the way things are done in the workplace (informally and formally) - for example, there may be an unwritten rule at your school that all medical appointments must take place at the beginning or end of the school day, this unwritten rule may trigger your employer’s duty to make reasonable adjustments if it prevents you from attending a medical appointment.
- make physical changes to the premises - for example providing accessibility ramps to exits and entrances.
- provide auxiliary aids or services - for example, a specialist piece of equipment such as an adapted keyboard or text to speech software.
Changing the way things are done
Employers may have a certain way of doing things which disadvantages you if you’re disabled. The Equality Act calls these provisions, criteria or practices (PCPs). It's important to think carefully about what provision, criteria or practice is causing the disadvantage because this will affect the adjustment the employer has to make.
You are required by law to compare your treatment to that of staff who are not disabled (these can be hypothetical staff) so that it may be ascertained whether the disadvantage of which you complain arises from disability, or for some other reason unrelated to disability.
Examples of adjustments to PCPs that could be made are:
- Allocating some duties to another worker, e.g. asking a non-disabled worker to undertake classroom teaching or playground supervision for you.
- Altering your hours of work, e.g. allowing you to work part-time or to job share or making adjustments to the school/college timetable.
- Reducing your workload, e.g. by reducing your maximum working hours to a proportion of the working week.
- Arranging home working, e.g. allowing an employee with management and classroom responsibilities to work occasionally from home with regard to both the PPA and management side of the job.
- Allowing absences during working hours for rehabilitation, assessment and/or treatment, e.g. allowing you to take time-off during work to receive physiotherapy or other treatment.
Making physical changes to the premises
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.
Example adjustment to premises in schools can include the following:
- providing wheelchair-accessible toilets, ramps and automatic opening doors
- allocating classrooms on ground floors
- providing parking spaces for disabled drivers.
- widening a doorway, moving classroom or corridor furniture
- providing a ramp or stair-climbing chairs
- altering lighting and providing clearer signs
Provide auxiliary aids or support
Examples of auxiliary aids and services may include:
- Supplying additional training, e.g. training in the use of particular pieces of equipment unique to someone with your condition or re-training you in a new subject area (e.g. a conversion course) in order for you to continue working.
- Providing a reader or signer, e.g. reading information to you at particular times during the working day if you are visually impaired.
- Employing a support worker to assist you, e.g. providing you with a dedicated classroom assistant because of your mobility problems.
- Modifying documents needed to do your work, e.g. producing materials in large font if you are visually impaired or in an appropriate format if you are dyslexic.
What factors may the employer take into account when considering the reasonableness of an adjustment?
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.
Access to Work
Access to work is a Government grant scheme which supports disabled people and their employers to overcome barriers in work.
As well as giving advice and information to disabled people and employers, Access to Work may pay a grant, through Jobcentre Plus, towards any extra employment costs which result from adaptations to the workplace.
For example, it can help pay for:
- Communicator support at interview (CSI) which meets the full cost of hiring an interpreter to remove barriers to communication at interview;
- A support worker, which allows the applicant to use the services of a helper.
- Special aids equipment to help a disabled person function in the work place;
- Adaptation to premises or to existing equipment;
- Help with the additional costs of travel to, or in, work for people who are unable to use public transport.
It will be for you to contact Access to Work, although your employer can help facilitate that process. The Union can also assist.
Apply online via the Access to Work website or contact the central helpline on 0345 268 8489 (text phone: 0345 608 8753).
What is the role of GPs and Occupational Health when asking for reasonable adjustments?
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.
How can Occupational Health professional help?
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
- Your views about the barriers to your full involvement as a teacher or support staff at your school or college;
- Your view of the causes; and
- The adjustments you believe are needed to help you return to work and, more importantly, stay in work once you have returned.
Reasonable adjustments and 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.
Appraisal cycles and pay reviews
DfE guidance requires pay policies to make it clear how teachers on long-term leave will be treated in relation to pay progression.
For permanent teachers in schools, the appraisal cycle will normally run for 12 months from September to August. You should not be denied pay progression because you have been absent on sick leave during some or all of this time. This is equally true for members of support staff.
It is the Union’s view that where you have been absent through long-term illness, your principal/head teacher should ensure that a performance review is conducted during the relevant appraisal cycle. In the event that a review cannot be conducted until you return to work, your principal/head teacher should conduct a review as soon as possible following your return.
Your employer has a number of options for the kinds of reasonable adjustments that can be made to its pay policy depending on the nature of the disadvantage caused.
For example, your employer may rely on your performance during your last appraisal cycle as the basis for a pay award, or alternatively consider using a different and/or shorter time period as the reference period for assessing pay. If you have already completed two out of three observations satisfactorily, for example, it is likely to be reasonable not to require you to complete the third in order to receive a pay award.