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The Disability Discrimination Act 1995 imposes a duty on employers in Northern Ireland to make reasonable adjustments to accommodate disabled people in employment and related fields.
Section 3A of the DDA provides that “a person.. discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person”.
The duty to make reasonable adjustments is described in section 4A of the DDA which provides:
Where –(a)a provision, criterion or practice applied by or on behalf of an employer, or (b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
No duty is imposed upon an employer in relation to a disabled person if the employer does not know and could not reasonably be expected to know that the person concerned is disabled and is likely to be put to a substantial disadvantage by reasons of a provision, criterion or practice applied by, or any physical feature of premises occupied by the employer.
Disability is defined in section 1 of the DDA which provides that a person is disabled if they have “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.
The duty to make adjustments arises only where a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, in fact places a particular disabled person at a substantial disadvantage compared with people who are not disabled. A “substantial disadvantage” must therefore, be shown in the particular case. Substantial means more than minor or trivial. It is not necessary for a disabled person to point to an actual non-disabled person who is not placed at a substantial disadvantage by reason of the particular provision, criterion or practice or physical feature of the premises.
It is worth bearing in mind that the duty to make reasonable adjustments arises in respect of all employment related activities namely recruitment, employment, dismissal and other activities out of and closely connected with the employment relationship. Generally, the duty in the case of an existing employee will be more substantial than the duty owed to a person merely contemplating applying for employment. That being said, each case will turn on its own facts.
The words “provision”, “criterion” and “practice” are not exclusively defined by the DDA. Physical features will include steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilets & washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture, and temporary or moveable items amongst other things.
Section 18B of the DDA sets out factors which will be considered when determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments. These include:
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e)the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking;
(g) where the step would be taken in relation to a private household, the extent to which taking it would—
(i) disrupt that household, or
(ii)disturb any person residing there.
Section 18B(2) also gives examples of the steps which a person might need to take in relation to a disabled person in order to comply with the duty to make reasonable adjustments. These include:
(a) making adjustments to premises;
(b)allocating some of the disabled person’s duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his hours of working or training;
(e) assigning him to a different place of work or training;
(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision or other support.
The test for determining whether a duty to take particular steps arises is an objective one. This means that the question whether or not an employer has discharged the duty placed upon him by taking such steps as it is reasonable for him to have to take is a matter for the court or tribunal to determine on the particular facts.
It is likely that the duty to make reasonable adjustments will arise in the context of clinically vulnerable employees and their return to the workplace during the COVID-19 pandemic. The Equality Commission for Northern Ireland has prepared a very helpful advice note which addresses the factors that employers should consider in relation to employees who are disabled, and for those employees who are caring for disabled dependents.
This article is prepared for general information purposes only. Should you require legal advice, please consult a solicitor.
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