Making reasonable adjustments – it’s not just what you do, but also when you do it

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Posted in:HR and Employment|August 24, 2012 | Join the mailing list

The law in relation to disability and the obligation on employers to make reasonable adjustments can be tricky and even the biggest of employers can fall foul of it, unless they act carefully and are aware of their legal obligations.
The recent Employment Tribunal case of Duckworth – v- British Airways plc showed that even where an employer makes a reasonable adjustment to help a disabled employee carry on working, this will not be enough if the employer took too long to make the adjustment.

The Equality Act 2010 requires an employer to make reasonable adjustments to any work practice or physical feature of the workplace which places a disabled employee at a substantial disadvantage compared to people who are not disabled. For example, an employer
might be required to make changes to the physical layout of an office, where the existing layout causes difficulties for a disabled employee. Where an employee’s disability makes it difficult or impossible for them to do a particular kind of work, their employer
might be required to move them to a different kind of work, which they find easier to carry out. The question for an Employment Tribunal faced with a reasonable adjustments claim will be whether the adjustments were ones which the employer could reasonably
have made and if reasonable adjustments were made, whether the employer acted within a reasonable timescale.

In the case mentioned above, Mr Duckworth was employed by British Airways as a member of the cabin crew on long-haul flights and in October 2010 he became ill with diabetes and coeliac disease. Initially, BA’s occupational health department stated that he was
now only fit enough to carry out ground duties and so he was transferred to doing ground-based work (with a consequent reduction in his pay). However, in July 2011 he was certified by an occupational health doctor as now being fit enough to work as cabin crew
on short-haul flights as well as being fit enough to do work on the ground. In spite of this however, it was not until March 2012 that BA transferred Mr Duckworth to doing short-haul flights.

Mr Duckworth brought an Employment Tribunal claim and at the hearing he argued that BA had failed in its duty to make reasonable adjustments. His ill health amounted to a disability and because of this disability he was unable to work on long-haul flights and
Mr Duckworth argued that BA should have made the reasonable adjustment of transferring him to doing short-haul flights earlier than they did.

The Employment Tribunal agreed with Mr Duckworth and said that while BA had eventually made the reasonable adjustment of transferring him to short-haul flights, their delay in doing so had been unreasonable and consequently the duty to make reasonable adjustments
had not been complied with. The Tribunal concluded that it was reasonable to expect some delay after the occupational health department updated its advice in July 2011, but taking this into account Mr Duckworth ought to have been transferred to doing short-haul
flights in September 2011 rather than in March 2012. The six month delay which occurred between September 2011 and March 2012 was unreasonable and the Tribunal awarded Mr Duckworth over £8,500.

Nigel Crebbin, a partner in the Berg employment team, comments that:  "this case shows how important it is for employers, large and small, to be aware of their legal obligations to disabled employees and to be fully trained in this area. When adjustments need
to be made to assist disabled employees, they need to be made without unreasonable delay and not being aware of your legal duties will be no defence to an Employment Tribunal claim".

"The Berg employment team provide in-house training to businesses on topics including managing disability issues, and we always make our training sessions lively and interactive, so that employers leave them better informed and with their businesses better

To discuss how we can provide further advice in connection with these issues, please contact Alison Loveday, Managing Partner and Head of Employment Team, by email to or alternatively you can call Alison on 0161 833 9211.

The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice.  No responsibility for this article’s accuracy or correctness is assumed by Berg or any of its partners or
employees.  Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.

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