By Mandy Aulak and Sean Kennedy, Talem Law.
As a law firm which specialises in employment and special educational needs, we are instructed to support many disabled people who are in difficulty. Almost without exception, the problems experienced relate to a failure to make reasonable adjustments. This means that the disabled person is effectively excluded from, for example, the workplace or educational environment.
World Autism Awareness Day provides an opportunity to remind the autistic community and other people with disabilities of the importance of making reasonable adjustments. Our view is that they are an essential part of disability inclusion.
The clinical description of an autism spectrum disorder (ASD) given in The Diagnostic and Statistical Manual of Mental Disorders (DSM–5) – which is the manual often used by people making a diagnosis, says the person must be disabled by their condition on a day-to-day basis.
This is in line with the definition of disability given in section 6 of the Equality Act 2010 which says that a person is disabled (or has a statutory disability) if their disability has a substantial (meaning more than minor or trivial) adverse (negative) effect on one’s ability to carry out normal day-to-day activities, which includes carrying out the responsibilities associated with a job. If a person has a disability that complies with this definition, then reasonable adjustments must be made – albeit there are some very limited exceptions, for example in the “armed forces”.
Reasonable adjustments are made to avoid the specific difficulties a person experiences because they have a statutory disability and there is no defence to not making reasonable adjustments. But it is important to be aware that, for example, the employer, service provider, school etc is only under a duty to make the adjustments for an identified person if:
- they know the person is disabled, i.e., they may have been told OR
- even if they have not been told, they have sufficient knowledge to conclude the person disabled.
It is important to appreciate that not all autistic people will require the same reasonable adjustments to be made. Further, the adjustments need only be ‘reasonable,’ and this will be determined by factors such as:
- Their effectiveness in substantially reducing any disadvantage.
- How practical it would be to make the adjustment given the circumstances.
So, what does all this mean for autistic people? As we have stated, our experience leads us to conclude that a failure to implement reasonable adjustments is often the precursor to exclusion. We therefore offer the following our IDLE checklist for people to follow. The word IDLE was chosen to as this is what disabled people, employers, schools, universities shouldn’t be when approaching the issue of reasonable adjustments:
(I) Inform – the organisation who has the duty to make reasonable adjustments should be told a person is disabled.
(D) Detail – the disabled person should describe how, for example, their job is made harder because they are disabled.
(L) List – a list of reasonable adjustments should be composed and implemented.
(E) Evaluate – the effectiveness of the reasonable adjustments should be assessed after they have been implemented.
We appreciate that many autistic people are not comfortable going through the above process and this is understandable. The difficulty is that, until it is changed, we are stuck with the current regime.
To conclude, inclusion is a “must” not a “nice to have”. We are firm believers in real inclusion but know we are certainly not there yet. We have shared our knowledge and experience in the hope that we can play some part in achieving true equality for disabled people.
2nd April 2022