Disability Discrimination Act - reasonable adjustments, case ref: 2.3b/May 2004
Summary of case
Ms X has been employed by the Department since May 1994. In 2000 she was diagnosed with relapsing/remitting multiple sclerosis. She experienced difficulties in persuading the employer to make adjustments.
The employer decided to relocate the team which the member was working on to another location on site. There were no toilet facilities in the immediate vicinity of the new workplace/station.
The member had submitted a DDA claim to the ET. The BU requested general advice on arguments to be advanced at the hearing.
Key advice provided by Thompsons
Thompsons provided advice on a number of points on definitions of disability, less favourable treatment and victimisation.
In addition detailed advice was given around the question of reasonable adjustments and how any arguments may apply in this particular case. This included the following paragraph which summarises what Section 5(2) of the DDA says in relation to reasonable adjustments:
"Under Section 5(2) of the DDA, an employer must make reasonable adjustments to prevent a disabled worker from suffering a substantial disadvantage as a result of the employer's arrangements or premises. Whether a particular adjustment is reasonable will depend on a number of factors including cost, practicality, effect on service, extent of benefit to worker, resources of employer and whether there is financial help available."
The advice went on to look at the question of what it may be possible to consider by way of reasonable adjustments in the context of the actual case. The following comments are recorded:
"Given that Ms X's Team was to be relocated to another part of the site, adjustments that could have been made would have included the following:
Reversing the decision to move the team to this part of the site. This is unlikely to have been a "reasonable" adjustment. There appears to have been strategic/logistical reasons for this relocation, and the DDA would not normally oblige an employer to cancel an entire departmental move for the sake of one employee".
Allowing Ms X to continue working for the Team, but from her old office base. Both parties appear to agree that this would have been impractical and undesirable.
Offering Ms X the opportunity to be redeployed to other posts. The various posts initially suggested by HMPS appeared to be unsuitable and there is no evidence that Ms P had herself identified any other posts to which she would have wished to be redeployed.
Adjusting the new work location so as to reduce the difficulty that Ms X would experience in attempting to access toilet facilities.
On the papers available, this last potential adjustment does not seem to have been fully explored. As I understand it, Ms X's trade union representative had argued throughout the internal proceedings that management ought to look at the feasibility of providing toilet facilities on site. There is no evidence however that managers did indeed address their minds to this option. Specifically there is no evidence that management carried out any sort of assessment of the costs and/or practicality of undertaking this work. Nor were the Access to Work scheme asked to look at this option.
In the absence of the department being able to show that they did adequately consider this option, I believe that this last point provides Ms X's claim with a reasonable prospect of success."
Legal Department comment
Hopefully, the above advice provides officials with some help when considering what factors apply in relation to arguments around reasonable adjustments.
The advice provided above follows on from that given in Bulletin No 1 (case 1.1 refers) which highlighted comments made by Thompsons on how the Act applies and what needs to be considered when assessing if an applicant has a disability as defined by the Act. Future bulletins will pick up other advice provided by Thompsons on how the DDA applies.