Do I need to make adjustments before a disabled employee starts work?

Dear Auntie

Attempting to understand adjustments

Dear Attempting,

Since October 2004, all companies are required make reasonable adjustments for disabled employees. The exemption for companies employing fewer than 15 members of staff has been removed. Therefore, even though you are an owner of a small company you will still be caught by the disability legislation.

Firstly, the question will be whether or not Jim is disabled. To be disabled under the Disability Discrimination Act 1995 (“DDA”) Jim must show that he has a physical or mental impairment which has a substantial adverse long term effect on his ability to carry out day to day activities. It appears from the information you have provided that it is likely that Jim will be disabled for the purposes of the DDA. Deafness is a recognised physical impairment. He has already said in his application form that he needs to be able to lip read which certainly has an impact on his day to day activities. Ultimately whether or not he is disabled under the DDA is a legal question but you would be well advised to prepare properly for Jim’s interview. DDA requirements apply to recruitment as well as employment.

It is a good idea for you to give Jim a call in advance of the interview and ask whether there are specific adjustments he requires so that he can participate in the interview fully. Case law has shown that it is not enough for employers to wait for the potential candidate or employee to make suggestions for reasonable adjustments and that the employer should take the initiative. You could ask him if wants a British Sign Language interpreter to attend the interview. Another possible adjustment, as Jim relies on lip reading, would be for you to ensure that the room in which he is interviewed is not so bright or so dark so that he cannot see what the interviewers are saying clearly. You should also think about where Jim and the interviewers should sit. The questions which you ask Jim could have more of an emphasis on his showing his skills through his design work (given that it is a creative post for which he is applying). He could be asked to show a selection of his work at the interview. Failure to make reasonable adjustments at an interview stage could put Jim at a disadvantage because of his disability. If you decide not to give him a job and he thinks it is because he performed badly because no adjustment was made for his disability, he could bring an employment tribunal claim on that basis.

If you decide to offer Jim the position, given that you are already on notice of his disability, you should consider what reasonable adjustments are necessary for Jim to carry out the role effectively before giving him the role. The recent case of Williams v Walter Thompson Group Limited makes it clear that it is no defence for an to say once they have employed a disabled person that there are not sufficient funds to make the necessary reasonable adjustments to the working environment. This issue could be particularly critical in your company’s case, given that you are a small firm and resources may be tight. You need to consider this issue before you employ Jim.

Since October 2004, the DDA has been amended and employers are now under a duty to make reasonable adjustments where a provision, criterion and practice (rather than an “arrangement”) applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage when compared with people who are not disabled. Do not wait for Jim to ask what adjustments can be made but be proactive and think ahead.

A potential practice in your company could be the fact employees need to speak to clients on telephones and this is the main way in which they communicate. As such, the company would be under a duty to make a reasonable adjustment, such as putting equipment in place to assist Jim in speaking on the telephone. There can now be no justification for failing to make a reasonable adjustment and the question is now whether the adjustment is reasonable or not. You would need to investigate the various options in putting equipment in place, the costs involved and whether it is disproportionate to the resources you have available. Should you consider that this adjustment is unreasonable, you may be able to show that it was not possible for you to employ Jim. However, you could also consider whether the practice of speaking on the phone is strictly necessary and whether in fact, Jim could use email more. This would be a cost effective way of enabling him to work for you but without having to make costly adjustments. It is likely that a tribunal would expect you to think laterally before taking the decision not to offer Jim a job.

If you decide not to offer Jim the job, your reasons should be clearly set out and not in any way related to his disability. For example even though Jim has submitted a very good application, you may find that in the interview he is unable to answer questions effectively or his portfolio of design work is not impressive. However, if the real reason you don’t Jim offer Jim the job because he is partially deaf and not because you consider that he won’t be able to do his job because of his deafness, this is direct discrimination (a new type of discrimination established by the amendments to the DDA) and such treatment would be unlawful.

If you decide not to give Jim the job because you think it would be too costly to buy new equipment to accommodate his disability, you may be in breach of the DDA. If you fail to investigate whether the adjustment is reasonable or not and don’t offer Jim the job on an assumption that the changes can’t be made, you are likely to be found to have acted unlawfully under the DDA.

The key message for employers who are considering employing staff who are disabled is to be proactive and consider what adjustments can be made. The amendments to the DDA mean that it is now up to the employer to ensure that a disabled employee is happily and effectively integrated into the working environment. Employers and disabled employees can also seek help with specialist equipment, advice and funding from both the government, the Disability Rights Commission and charities (for instance, in this case, the RNID or BDA).