Keeping the “reasonable” in reasonable adjustments

31 January 2018

An English employment tribunal recently made an award of £1,000 against Marks and Spencer after managers delayed in providing a disabled staff member with the key to a customer lift which would have allowed him to reach the store’s toilets more easily. The tribunal concluded that the retailer had breached its legal duty to make reasonable adjustments for disabled employees.

Keeping the “reasonable” in reasonable adjustments

The employee, Mr Mitchell, suffered from a disability which meant he had an increased requirement to use the toilet. Mr Mitchell raised the issue with several managers, suggesting that if he was given a key to the customer lift, any disadvantage would be overcome and he could reach the toilet facilities with greater ease. Regrettably, managers told Mr Mitchell that he would have to wait for that key to be cut, but that he could use the goods lift in the meantime.

Although Mr Mitchell was provided with a key to the customer lift some ten days later, he brought a claim in the employment tribunal for disability discrimination (failure to make reasonable adjustments). The tribunal concluded that there could be “…little excuse or explanation…for not providing the claimant with a key for 10 days when there were keys available and when the cost of cutting a further key was agreed to be £3.”

The tribunal agreed that using the customer lift rather than the goods lift made a difference for Mr Mitchell, in terms of “speed, reliability and convenience”.

The lesson for employers

In Northern Ireland, the Disability Discrimination Act 1995 requires employers to introduce reasonable adjustments in respect of both job applicants and employees/workers who suffer from a disability, with a view to ensuring that disabled people are not disadvantaged and enjoy equality of opportunity in employment.

There are a number of factors employers should consider when determining what is a reasonable adjustment, including the effectiveness of overcoming any disadvantage suffered and whether that adjustment is “reasonable”, with reference to cost, timing and the resources available to the employer, whether those resources are financial, physical or otherwise.

Employers are required to assess and balance these factors before exercising judgement. Often, this is not a simple task, but employers must remember that they should consult the disabled person about their needs, obtain expert advice where appropriate, use trial periods to test the effectiveness of potential adjustments and/or keep any adjustments under review.

The most notable point arising from the Mitchell v Marks and Spencer case is not the level of the award, but the fact that the employer did actually make the required adjustment; the fatal flaw was simply that the adjustment was not made in time. Employers should bear this in mind, remembering that seemingly trivial delays can be costly.

John Kelly is a Solicitor in Worthingtons Commercial Solicitors, Belfast, where she specialises in Employment Law and can be contacted on 028 9043 4015

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