Risks of not making reasonable adjustments

Case facts

Mr Tyerman initially applied for a role in the cyber security department, and was short listed for the job. Due to his autism he struggled to properly communicate, and therefore requested to be able to see the interview questions in advance, and also asked them to avoid open-ended questions which he would have found very difficult to answer. NHS Digital refused the requests, stating that all applicants needed to be treated the same and his requests were unreasonable. Mr Tyerman then requested to have a skills assessment (or work trial), but this was rejected by NHS Digital stating their security checks would be prohibitive.

Following this, Mr Tyerman decided not to attend the interview, but did subsequently apply for another role within the same department a few months later. During his telephone interview, despite requesting the same reasonable adjustments, NHS Digital continued with open-ended questioning, which resulted in them rejecting him for the job. During the interview feedback they informed him that his inability to give strong enough in-depth answers during the interview, was the reason for his application being unsuccessful. Following his formal complaint to NHS Digital, which was effectively ignored, Mr Tyerman submitted a claim to the Employment Tribunal for failure to make reasonable adjustments. The legal process lasted over a year, until a mediation process led by ACAS, resulted in NHS Digital offering Mr Tyerman a settlement. He received £20,000 which included compensation for injury to feelings.

The law

Disability is one of a number of protected characteristics under the Equality Act 2010. An employer will be at risk of disability discrimination if they fail to make reasonable adjustments, which put a disabled employee at a disadvantage compared to other non-disabled employees. The duty to make reasonable adjustments is unique to the protected characteristic of disability. Where the duty arises, the employer must effectively treat the disabled person more favourably than others to reduce or remove that individual’s disadvantage. This duty extends to job applicants during the recruitment process. An employer does not have to make adjustments that are unreasonable, however they should still find other ways to support disabled employees. Employers will not be obliged to make reasonable adjustments unless they know or ought reasonably to know that the individual in question is disabled. Employees who bring reasonable adjustment claims, might also pursue other claims such as discrimination arising from disability and/or indirect discrimination claims.

Take home points

The onus will be on the employer to find out more about an employee or applicant’s potential disability, in cases where they might need to make reasonable adjustments during the interview process. What is deemed reasonable will always depend on the individual facts, but employers would be wise to ask as many questions as they need to at the outset of the recruitment process, to understand if the person applying is likely to be at a disadvantage due to a disability. The Employment Tribunal will objectively determine whether a particular adjustment would have been reasonable to make in all the circumstances. The Tribunal will look at whether the adjustment would have removed the disabled person’s disadvantage, what the cost of the adjustment is relative to the financial position of the employer, and any disruption the adjustment would cause to the employer’s activity. Once an employer has a better understanding of the personal circumstances of an employee, they will be in a stronger position to determine whether and what adjustments need to be offered. Whilst a settlement was reached in this case, the case involved a lengthy and costly legal process which could have been avoided if NHS Digital had better understood their legal responsibilities toward disabled candidates.

For further information, or to discuss the issues raised in the article, please contact us to speak to a member of our Employment Team.