A recent case in the industry highlights the need for employers to genuinely consider making reasonable adjustments when employing staff who have a disability rather than just paying lip service to this legal requirement.
Managers at brewery BrewDog were criticised for doing exactly this by an Employment Tribunal when they dismissed an employee who told them that his eyesight was deteriorating. The employee worked in packaging and wanted to stay in that role rather than move to an alternative computing role that BrewDog offered him.
The RNIB advised on changes that could be made to enable the employee to continue in his packaging role. A mobility officer also carried out a site visit. However, BrewDog dismissed the employee because they deemed him a health and safety risk and were prioritising the safety of their other employees. The Tribunal decided that the employee was unfairly discriminated against and unfairly dismissed and awarded him £12,000. The Tribunal was concerned that the managers had no knowledge of the duty to make adjustments for disabled employees.
Employers have an obligation under the Equality Act to make reasonable adjustments for staff who suffer from conditions which amount to a “disability”. In this article we look at where BrewDog went wrong.
Blindness as a disability
The Equality Act sets out certain protected characteristics of which “disability” is one. A person has a disability if they:
“have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.”
An employee who is certified as severely sight impaired (blind) or sight impaired (partially sighted) by a consultant ophthalmologist will automatically be protected by the Act. In addition, an employee will have a disability if they have a sight problem which is long term (i.e. likely to last more than 12 months) and affects their ability to carry out their normal day to day tasks – for example: using a computer, working set times or interacting with other people. Whilst not all cases of poor sight will amount to a disability, many will.
The Equality Act prohibits direct and indirect discrimination on grounds of disability. It also prohibits harassment and victimisation.
Duty to make reasonable adjustments
In addition to the prohibitions in the Equality Act there is a duty on employers to make reasonable adjustments to ensure that disabled employees are not disadvantaged in the workplace and to support disabled employees to carry out their jobs.
A reasonable adjustment should not be too disruptive, costly or impractical for an employer to make. It could include providing special equipment – e.g. a braille keyboard – changes to hours, break times or place of work, changes to role or extra support – e.g. reducing workload or additional training / support from colleagues.
Many employers will think that blind people will be difficult to employ but according to the RNIB this is mainly due to misconceptions. Many people with visual impairment are not completely blind and, with adjustments, can carry on with their role. Where additional equipment is needed then subsidies are often available from the Government’s Access to Work scheme.
What is reasonable?
An employer has a legal duty to make reasonable adjustments but there will be times when the adjustment is unreasonable and it is therefore lawful to refuse to make it. Factors to consider include whether:
- the adjustment is practical
- the employer has the resources to pay for it
- it will have an adverse impact on other employees.
In the Brewdog case it was right for them to consider the impact on other employees however, the Tribunal clearly did not find that the duty to make reasonable adjustments had been properly and thoroughly considered.
When does the duty arise?
The duty to make reasonable adjustments arises when an employer knows (or ought reasonably to have known) that an employee has a disability. Employers should aim to create a culture where employees find open discussion possible. Employers may need to take the lead where a health issue is suspected to exist. Employees will need to be assured of confidentiality at all times.
Workplace adjustments must be applied at every stage of employment including interview, induction, training and development and return to work.
Employers: beware!
An employee can bring a claim for discrimination without needing any period of qualifying service.
Employers should be aware that if a claim is successful they can face very significant costs. Compensation for discrimination is unlimited, and can contain an element for loss suffered and also for injury to feelings.
