London Borough of Southwark v Charles 2014

Under the Equality Act 2010, employers have a duty to make reasonable adjustments to any elements of a job which places a disabled employee at a substantial disadvantage compared to non-disabled people.

A disabled person is defined by this Act as anyone with a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Long-term is defined as having lasted, or being likely to last, for at least 12 months or the rest of the person’s life (Government Equalities Office guidance on the Equality Act 2010).

Whilst the aim of this Act is to prevent a disabled person being placed at a substantial disadvantage compared to non-disabled people, the duty placed on employers is not to take all steps possible to prevent such disadvantage but to take reasonable steps to do so.

Employers will ask: “What is a reasonable adjustment?” This is a straightforward question with a far from straightforward answer. The raft of case law in this area has left employers confused and needing to tread very carefully when considering whether an adjustment to a disabled person’s job, their workplace or their organisational policies (amongst other things) need to be made.

A reasonable adjustment could be something as simple as installing an induction loop system for a person who is hard of hearing, or converting steps to a ramp outside a work property for employees who use a wheelchair.

However, some high-profile cases that have reached employment tribunals have proven that the issue of what constitutes a reasonable adjustment can be far more complex than this, and employers must be extra-vigilant when deciding whether or not to make an adjustment.

A tribunal will consider a wide range of factors when deciding whether an employer has acted reasonably, including the likely impact on the individual, as well as the likelihood of them overcoming the disadvantage, the cost of the adjustment, the employer’s ability to pay for or find funding for the adjustment, the practical impact and disruption it would cause, the nature and size of the employer’s undertaking, along with many other considerations.

The case of London Borough of Southwark v Charles 2014 demonstrates that reasonable adjustments are not always straightforward. In this case, the Employment Appeals Tribunal held that a disabled employee who was not able to attend meetings due to his disability was discriminated against on the grounds of his disability when he was dismissed for redundancy following his failure to attend an interview for an alternative post.

In this case, the employer wrote to the employee a number of times requesting him to confirm whether or not he was interested in attending an interview for the alternative position.

Despite the fact that the employee did not respond to various attempts to contact him and was subsequently dismissed on the grounds of redundancy, the employer was deemed by the Employment Appeal Tribunal (EAT) to have failed to make reasonable adjustments to prevent a substantial disadvantage to the employee by not offering him an alternative form of selection event.

The employer had previously acknowledged that the employee was unable to attend administrative meetings and that EAT considered it reasonable to include face-to-face interviews for this.

Even though the employee was not deemed to have been unfairly dismissed in terms of the redundancy itself (which was part of his claim), the disability discrimination aspect of the case succeeded on the grounds that reasonable adjustments were not made to allow the employee the option of participating in a different type of selection event.

This case will unnerve some employers as it adds to the complex collection of case law that already exists in this area. However, it serves as a useful reminder to employers that when dealing with a disabled employee, it is essential to consider all aspects of the case and not simply the obvious.

It is also important to remember that once an adjustment has been made, the duty of the employer does not end. The duty to prevent a substantial disadvantage for the employee is ongoing and employers must ensure they conduct regular and thorough reviews of the situation to avoid any potentially costly legal disputes.

1 Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.