17 December 2018

Avoiding unlawful discrimination – Part 2: Making Adjustments

Legal protection against unlawful discrimination under the Equality Act is not only prohibited against employees, but also locum vets, and your customers as “service users” (as defined by the Equality Act).

Across two articles, Stephenie Malone, a specialist healthcare employment solicitor from Harrison Clark Rickerbys, explains some of the important legal considerations and the fundamental elements of discrimination claims veterinary practices may face, as employers and service providers.

What is the requirement?

The legislation imposes a duty on employers to make reasonable adjustments to help disabled job applicants, employees and former employees in certain circumstances.

For practices as service providers, the duty is slightly different, as they may have a duty to make reasonable adjustments for their “service users” who are disabled people.

Employer duty

The duty only arises where the employer knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.

It is not applicable unless the individual has a disability as defined under the Equality Act.

Service provider duty

The duty only arises where the employer knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.

It is not applicable unless the individual has a disability as defined under the Equality Act.

The duty is owed to all disabled persons who want to access the service provider’s services. It applies regardless of whether the service provider is aware that a particular member of the public is disabled.

It is an anticipatory duty and is ongoing.

It creates an obligation for practices as service providers to actively review how accessible their services are to disabled persons generally, rather than waiting for a disabled person to encounter a problem.

If the service provider becomes aware of a particular disabled person who uses, or seeks to use its services, it might be reasonable to take particular steps to meet those requirements.

When does a practice need to consider this obligation?

This duty arises where a disabled person is placed at a substantial disadvantage by:

• An employer’s/ service provider’s provision, criterion or practice (PCP)

• A physical feature of the premises’

• A failure to provide an auxiliary aid

What qualifies as a “disability”?

The definition of disability is set out in law, and does not necessarily correspond with common perceptions of disability.

The statutory test: a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on an individual’s ability to do normal daily activities.

What is substantial?

More than minor or trivial.
E.g. it takes much longer than it usually would to complete a daily task like getting dressed.

What is long-term?

12 months or more (or likely to last 12 months or more).
E.g. a breathing condition that develops as a result of a lung infection.

Progressive conditions

A progressive condition is one that gets worse over time. People with progressive conditions can be classed as disabled.

Automatic disabilities

Some conditions automatically qualify as disabilities from diagnosis: HIV infection, cancer or multiple sclerosis.

Hidden disabilities

May not be visible at a glance, but can have a major impact on people’s lives. They can arise from conditions such as epilepsy, autism, diabetes and acquired brain injuries. Invisible disability, or hidden disability is an umbrella term that captures a whole spectrum of disabilities or challenges that are primarily neurological in nature.

Types of Invisible Disabilities:

• Chronic Pain
• Chronic Fatigue
• Mental Illness
• Chronic Dizziness

What isn’t covered?

Certain conditions are not deemed to be disabilities and are therefore not covered by the legislation, for example, addiction to non–prescribed drugs or alcohol.

However, the additional health implications can be covered, for example liver cancer

What must a practice do?

Once it has been established that an individual is disabled, the practice must review the following adjustment considerations:

• The PCP puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Steps must be taken as are reasonable to avoid the disadvantage.

• A physical feature of the premises puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Steps must be taken as are reasonable to avoid the disadvantage.

This includes steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, lighting and ventilation, lifts and escalators, floor coverings, signs, furniture and temporary or movable items.

• A disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled. Steps must be taken as are reasonable to provide the auxiliary aid.

In respect of service providers, their duty is wider, as it applies where a service provider is put at a “general” disadvantage. For employees it is where the practice knew or ought to know.

Examples for employees

• A practice policy for designated car parking spaces only being offered to senior managers. A worker who is not a manager, but has a mobility impairment and needs to park very close to the office, is given a designated car parking space. This is likely to be a reasonable adjustment to the employer’s car parking policy.

• Clear glass doors at the end of a corridor in a particular workplace present a hazard for a visually impaired worker. This is a substantial disadvantage caused by the physical features of the workplace.

• Auxiliary aids include provision of specialist equipment such as an adapted keyboard or text to speech software, and extends to auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker.

Examples for customers (“service users”)

• Provision of a wheelchair ramp to overcome a step.
• Provision of wheelchair spaces.
• Allowing service dogs where dogs would otherwise be prohibited.
• Induction loops for hearing aids.
• Display units at the entrance of a practice restrict the ability of wheelchair users to enter reception. The practice decides that, without any significant loss of selling space, the display units can be removed and repositioned elsewhere.

What if I think the request isn’t reasonable?

There is not an automatic duty to make adjustments once a job applicant or employee is found to be disabled. It is necessary for a “substantial disadvantage” to exist. This is a comparison with persons who are not disabled.

“Substantial” has a low threshold, being “more than minor or trivial” .

For “service users”, the practice does not have to fundamentally change the nature of the service being provided or the nature of the provider’s trade or profession. For example, if a home visit service is not offered generally by the practice for any “service users”, it does not necessarily have to introduce one.

For the practice to determine whether any potential adjustments are required will depend on whether they are reasonable, taking into account in the circumstances. Each situation will be unique to the practice and the individual concerned, based on the facts. As an employer and service provider, the practice will not breach the duty to make adjustments unless it fails to make an adjustment which, having considered the proposal fully, the practice does not consider to be reasonable.

The factors which are often relevant to whether an adjustment is reasonable:

• The extent to which the adjustment would have ameliorated the disadvantage.
• The extent to which the adjustment was practicable.
• The financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer’s activities.
• The financial and other resources available to the employer.
• The availability of external financial or other assistance.
• The nature of the employer’s/ service provider’s activities and the size of the undertaking.

It is key for the practice to be able to demonstrate that it has given meaningful consideration of adjustments in determining whether the suggestion is reasonable – or not – and to document the decision making rationale should the decision be to turn down the request/ consideration or to put forward an alternative suggestion.

In assessing whether the adjustment is reasonable, cost should not be the sole determining factor; yet it is entirely reasonable for a practice to factor into the decision the proportionality of the request weighed against the size and financial resources of the practice.

If you would like further information about the HR and employment law issues surrounding discrimination, please contact Stephenie Malone (Associate Solicitor – Healthcare and Veterinary Specialist) at Harrison Clark Rickerbys solicitors.

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About the Author
Stephenie Malone, Senior Associate Solicitor
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