When an employer is making reasonable adjustments for a disabled person, do they need to consider modifications to physical features and providing auxiliary aids as well as adjusting practices and procedures?

Of course is the answer, as was recently confirmed in Mr Christian Mallon v Aecom Ltd: UKEAT/0175/20/LA (V).

This case concerned Mr Mallon, who has dyspraxia (a disorder that affects fine and gross motor skills, motor planning, and coordination). He claimed he needed a reasonable adjustment to make a job application to the Respondent (Aecom Ltd) orally, rather than online.  In his decision HHJ Tayler stated it is important in considering reasonable adjustment claims, to consider the possibility that the case is about physical features (which includes furniture) or auxiliary aids (which include services).

Reasonable adjustments remove the disadvantage a disabled person is subjected to as a result of the impairments associated with their statutory disability. This duty is often seen only in terms of adjustments to what are referred to as provisions criteria or practices – which are often referred to by the acronym PCP’s. In short, PCP’s relate to how a company works.

Helpfully, in para 21.1, 2  HHJ Tayler confirmed:

The concept of PCP is not to be approached in too restrictive a manner; Carrera v United First Partners Research, UKEAT/0266/15. HHJ Eady QC considered that an expectation that employees work late was sufficient to be a PCP, even if there was no absolute requirement, as appeared to be the literal reading of how the PCP had been defined

The duty to make reasonable adjustments applies to the employer or potential employer. While it may assist, there is no requirement on the disabled person to suggest what adjustments should be made: Cosgrove v Ceasar and Howie [2001] IRLR 653

Despite s20 The Equality Act 2010 what can be  overlooked when making reasonable adjustments  is the need to consider adjustments in terms of physical features and providing auxiliary aids (or services). This limb should be seen in terms of providing extra equipment – which equality law calls auxiliary aids – and auxiliary services, where someone else is used to assist the disabled person, such as a reader, a sign language interpreter or a support worker.

To complete the picture what is reasonable in terms of adjustments is dependent on the size and resources available to the company who is required to make the adjustments as well as how effective a proposed adjustment is likely to be. What is certainly clear is that a failure to make reasonable adjustments is unlawful.

So, what does this mean for educational establishments? The requirements imposed by the Equality Act 2010 in this regard are separate from, say, the responsibilities imposed on a local authority by an EHCp or the need to provide SEN support.

That said, an educational provider has a duty to make ‘reasonable adjustments’ to make sure disabled students are not discriminated against. These changes could include providing extra support and aids (or equipment). Schools are not subject to the reasonable adjustment duty to make alterations to physical features, like adding ramps. They must make the buildings accessible for their disabled pupils as part of their overall planning duties.

So, what such adjustments look like in schools? The Equality and Human Rights Commission provides the following examples:

Providing a pupil who is a wheelchair user with a support assistant to push him or her around school would be an auxiliary service. Providing a step so that a pupil with restricted growth syndrome can reach the desks in the science lab would be an example of providing an auxiliary aid.

A disabled pupil with dyslexia finds it very difficult to read text typed on white paper. The school provides handouts on yellow paper for her. This would be a reasonable adjustment for this pupil.

Parents are encouraged to read the document Reasonable Adjustments for Disabled Pupils which can be found HERE.  This document provides valuable to assistance to anyone wanting to find out more about this important subject.

Talem Law

10th April 2021


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