When does the duty arise?
An employer must comply with the duty in relation to a disabled job applicant (or employee) where:
- the disabled person is at a substantial disadvantage compared to persons who are not disabled as a result of, any provision, criterion or practice applied by the employer, or any physical feature of premises occupied by the employer, and
- the employer knows, or could reasonably be expected to know, that the person is disabled and is experiencing the disadvantage, or is likely to.
Where an employer is under the duty, they are required to take such steps as are reasonable to take, in all the circumstances, in order to remove the physical or procedural barriers which the disabled person may face when seeking work. What is required by the duty in respect of a particular person depends on what is reasonable in the context of the circumstances of each case.
What kinds of adjustments might an employer have to make?
The DDA specifies a list of possible adjustments that may be implemented,depending on the circumstances. The list is not exhaustive:
- making adjustments to premises
- allocating some of the employee’s duties to another person
- transferring the employee to an existing vacancy
- altering the employee's hours of work or training
- changing the employee's place of work or training
- allowing the employee time off to receive medical treatment, assessment or rehabilitation
- providing training or mentoring to the disabled person
- acquiring or modifying equipment
- modifying instructions or reference manuals
- providing a reader or interpreter
- modifying procedures for testing or assessment
- proving supervision or other support
Further examples are discussed below.
When is an adjustment a reasonable one?
What is reasonable depends on the circumstances of each case, meaning that what is reasonable in one situation may not be reasonable in others. The primary aim of the duty is to enable a disabled person to obtain, remain in or return to work. An important consideration therefore is whether a proposed adjustment will help to achieve that goal.
There are a number of factors that should be taken into account, such as:
- the effectiveness of the step in preventing the disadvantage
- the practicality of the step
- the financial and other costs required, and the extent of any disruption it may cause
- the extent of the employer’s financial and other resources
- the availability of financial or other help
- the nature of the employer’s activities and the size of the undertaking
- the effect on other employees
- adjustments made for other disabled staff
- the extent to which the disabled person is willing to co-operate
See further examples below.
• Example – Ensure that your website is accessible
Many employers use online recruitment methods, which may include advertising on websites and/or requiring applicants to complete online application forms or tests.
You should take reasonable steps to ensure that websites that are used for these purposes are accessible and that they do not raise avoidable barriers for job seekers who have disabilities. It is good practice to use websites that meet international accessibility standards (e.g. such as the standard known as WCAG 2.1 AA).
Public bodies, in particular, should note that they are obliged to comply with the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 which, amongst other things, require that their websites satisfy the WCAG 2.1AA standard. A failure to meet the standards is a breach of the DDA’s reasonable adjustment duty. Some legal defences are available. The Government Digital Service is the official source of guidance on how to meet the standard.
• Example – Making adjustments to premises
A job applicant is invited to attend an interview. She does not tell the employer in advance that she uses a wheelchair and on arriving at the employer’s premises she discovers that the interview room is not accessible for her.
Although the employer could not have been expected to make the necessary adjustments in advance, it would be a reasonable adjustment to hold the interview in an alternative, accessible room if one is available without too much disruption or cost.
• Example – Modifying procedures for testing or assessment - 1
In the preceding example, an alternative solution may be to reschedule the interview to another day, if it is reasonable to so.
Employers should be prepared to do this for disabled applicants, especially where they may find it difficult to attend a scheduled meeting for reasons related to their disabilities; e.g. clashes with hospital appointments or difficulty travelling at certain times of the day.
• Example – Modifying procedures for testing or assessment - 2
An employer includes a 45 minute written test as part of its selection process.
If an applicant, who is disabled due to dyslexia, would be unable to complete the test within the 45 minutes because of her disability, then she would be placed at a substantial disadvantage compared to the other, non-disabled, job applicants who are able to complete the test within that period. If this occurs, the employer will be under a duty to make reasonable adjustments to the test for her. If it is reasonable to do so, the duty might require the employer to extend the time for taking the test to 60 minutes, or to some other period, if that would help her to complete the test. This adjustment only has to be made for this applicant and not for all other applicants.
In the case of another disabled applicant who may have different needs and who may struggle to complete the test under any modified circumstances, the duty might, if it is reasonable to do so, require the employer to allow him to proceed to the next stage of the selection process without taking the test at all. If so, the waiver only needs to be made for that particular applicant and not for any other disabled person, unless they too need that particular reasonable adjustment.
These principals were confirmed in the following local cases:
Arthur -v- Northern Ireland Housing Executive [2007]
In the Arthur case, the employer, following expert guidance, extended the time allowed for the aptitude test by 20% for a job applicant with dyslexia. Despite that adjustment the applicant did not score highly enough to be invited for an interview. He alleged that he should have been allowed to proceed straight to interview without having to sit the test. His complaint was dismissed on the basis that, on the particular facts of this case, giving him an extra 20% of time was all that was reasonably needed to remove the disadvantage he was under and that the employer was under no further obligation to treat him more favourably.
British Telecom -v- Meier [2019]
In the Meier case, the employer made no adjustments to an online and automated “situational strengths” test for a job applicant with dyslexia and Asperger’s syndrome. When he did not score highly enough in the test to be invited for an interview, he alleged that he should have been allowed to proceed straight to interview without having to sit the test. On the particular facts of this case, it was held that it would have been reasonable for the employer to have adjusted its selection process either by waiving the need for him to take the test or by ignoring his test score and allowing him to proceed to the interview stage of the selection process. The failure to do so was a breach of the duty to make reasonable adjustments and an act of unlawful disability discrimination.
• Example – Providing a reader or interpreter & acquiring or modifying equipment
Job applicants who have disabilities that affect their ability to communicate may need adjustments and auxiliary aids to assist them to participate at a job interview. Examples might include:
- Arranging (and paying) for a sign language interpreter. When assessing whether it is reasonable to pay for an interpreter, an employer should consider whether assistance is available from other sources: e.g. such as from the Department for Communities’ Access-to-Work (NI) Scheme.
- Allocating extra interview time to accommodate the additional time that an applicant might need to communicate through an interpreter.
Adjustments like these should be planned well in advance of the interview.
It is also important to not assume that because the applicant may need communication support at an interview that he/she will be unable to perform the duties of the job. As an employer, you should make enquiries about the applicant’s ability to do the job in question, with or without reasonable adjustments.
Wynn -v- Multipulse Electronics Ltd [2007]
In the case of Wynn -v- Multipulse Electronics Ltd, the job applicant was a deaf man who applied to do an electronics job. He had previously done a similar job with a rival firm for 23 years prior to being made redundant. He was initially invited to an interview but this was later cancelled when the employer failed to arrange for a sign language interpreter to attend. The employer told him that they would re-arrange the interview, but they did not do so and instead informed him that they had rejected his application because: “it would not be possible on, inter alia, health and safety grounds for us to employ a person who requires a sign language interpreter in order to communicate.”
An employment tribunal ruled that the applicant had been unlawfully discriminated against because the employer could have provided reasonable adjustments that would have enabled him to perform satisfactorily in the job, just as he had done for 23 years with the rival firm. For example, the tribunal found that most of his communication needs would have been met by supplying him with a pager and a colleague to work beside. The tribunal also found that in the job a sign language interpreter would rarely have been needed and that on those occasions the cost would have been covered by the Access-to-Work scheme. The tribunal criticised the employer for failing to consider these issues: “All the [employer’s] actions were predicated on ignorant, erroneous, stereotypical assumptions of the [applicant’s] abilities.
• Example – Allocating some of an employee’s duties to another person, or adjusting a job description
When considering the job application of a person who is disabled, you should not assume that merely because, on initial consideration, the person cannot perform all of the duties of the job that it would be lawful to reject their application. You should also consider whether they could satisfactorily do the job in question if reasonable adjustments were made for them; for example, by amending the job description.
Keane -v- United Lincoln Hospital NHS Trust [2002]
In the case of Keane –v- United Lincoln Hospital NHS Trust, the job applicant was a partially deaf man who applied for the post of night shift medical records officer. Two of the 13 duties in the job description involved telephone use, but in practice this merely meant that someone should always be available in the office to answer any telephone calls. On the night shift in question there were always four or five other staff members available to do this.
At his interview, the applicant informed the interview panel that he would be unable to answer the telephone and for that reason alone the panel rejected his application. The panel gave no consideration to adjusting the job description in relation to the applicant by removing the telephone duties. An employment tribunal ruled that it would have been reasonable for the panel to have made this adjustment as it would not have caused any great inconvenience or expense. Their failure to do so was an act of unlawful disability discrimination.