SOCIETY OF OCCUPATIONAL MEDICINE

GUIDELINES FOR OCCUPATIONAL PHYSICIANS ON THE

DISABILITY DISCRIMINATION ACT 1995

(Continued - Part 5)


Reasonable Adjustment

The Disability Discrimination Act places a duty on employers to consider and where reasonable make adjustments to the working environment in order to facilitate a disabled individual in recruitment or retention at work. The Act makes it clear that such a duty applies only when the individual suffers a substantial disadvantage as a consequence of the existing physical premises or working arrangements of the employer. The Code of Practice provides guidance on determining what is reasonable in this respect (3). The Working Group would re-emphasise the importance attached to reasonable adjustment. This is likely to be the area where an employer will be tested as to the fairness of its treatment of the disabled person.


Adjustment

Section 4.20 of the Code of Practice gives examples and details of adjustments that are likely to be seen as reasonable (4). The following are some examples:

  • making adjustments to premises

  • allocating some of the disabled persons duties to others

  • transferring the person to fill another vacancy

  • altering the working hours

  • assigning the person to a different place of work

  • allowing absences for rehabilitation, assessment or treatment

  • arranging training

  • acquiring or modifying equipment and or manuals

  • providing a reader or interpreter

  • providing supervision

The occupational physician is often likely to be the first person to identify that adjustments may be required. It is important therefore that the employing organisation has arrangements in place for considering these issues and the role of the physician (see section -Organisational arrangements). The trained occupational physician should be competent to advise on many aspects of adjustment. Equally, other disciplines have an important contribution to make and successful adjustment may require a team approach. It will be very useful for occupational physicians to be aware of the range of services and expertise available from statutory and voluntary bodies (see section - Sources of advice and assistance).


Determining what is reasonable

The Act does not set an absolute requirement to make adjustments, rather the employer must take reasonable steps. Sections 4.21 - 4.32 of the Code of Practice give examples of factors which should be considered when determining the reasonableness of any measures (4).

These include:-

  • the effectiveness of the step in preventing the disadvantage

  • the practicality of the step

  • the financial cost

  • the disruption caused

  • the extent of the employer’s resources

  • the availability of financial or other assistance

  • the effect on other employees

  • the co-operation of the disabled employee

The occupational physician should be clear that deciding what adjustments are likely to be reasonable and implementing them is the employer’s responsibility. In considering reasonable adjustment the employer needs objective information on the essential tasks of any job and the physical and psychological demands that these tasks will impose. (See section - Job Requirements). The physician is in a unique position to use information gained from clinical and functional assessments and match it with an assessment of possible work place adjustments.

The often quoted principle of matching people with jobs seems appropriate in this situation, reinforcing the conclusion that the Act describes what has always been good practice in occupational medicine. This is likely to be the case particularly where people do not have fixed impairments. The individual with paraplegia secondary to an accident may be presented with problems in a work place that require primarily an engineering or ergonomic solution.

The individual with a chronic anxiety state or multiple sclerosis may present with a more subtle array of job related effects that may vary with time and treatment. In this situation clinical assessment, review of prognosis and functional capacity assessment may be more important to the determination of reasonable adjustment.

The occupational physician has a particular responsibility to consider the needs of disabled people who may require time off for treatment, rehabilitation or assessment. Where these requirements apply it is important that the employer is advised in order that the level of absence that it would be reasonable to accept can be considered.


Confidentiality & Record Keeping

The employer’s need to demonstrate reasonableness will require that occupational physicians keep adequate records of their assessments and advice. The issues of consent and confidentiality have already been discussed but apply equally to reasonable adjustment. The Working Group does not envisage problems arising from the need for confidentiality in most situations. There may be a requirement however to discuss an individual’s disability with other employees as a form of adjustment to arrangements at work. An example of this would be an insulin treated diabetic person for whom it would be sensible and in some circumstances necessary that colleagues were aware of the condition and what action should be taken in the event of hypoglycaemia. This could not be carried out without the consent of the diabetic person. In the absence of this consent it might be considered that reasonable adjustment could not be made. An example where these circumstances could apply might be a consultant anaesthetist, who has insulin dependent diabetes.

Because of the subtle but potentially disabling effects of hypoglycaemia his continuing practice may require that other staff are aware of his condition, in order that prompt and appropriate treatment can be administered in the event of a hypoglycaemic event.


Health & Safety Requirements

Any adjustments to the workplace or working arrangements can only be considered reasonable if they take account of and comply with UK Health & Safety Legislation.

In this respect the risk assessments carried out by an occupational physician may be important in determining what is reasonable. It is essential that any such determinations are evidence based (see section on - Risk Assessment).


Termination of employment

Where a disabled person is being dismissed for reasons relating to their disability it is necessary to be able to justify the action. It is essential that reasonable adjustment which might remove the need for dismissal is considered first. This is an important issue for occupational physicians who are frequently involved in determining whether an employee is fit to continue in their current employment and may have to consider adjustments such as redeployment, part-time working or provision of mechanical aids. Familiarity with the job and alternative jobs is essential.

Where retirement on medical grounds may become appropriate, the occupational physician may have a difficult judgement to make, depending on the individual’s wishes. People frequently view early retirement on medical grounds as a positive way of solving their difficulties. They may therefore not view favourably the possibility of reasonable adjustment being made in order that they may continue in their work. Where reasonable adjustment is a practical solution however the occupational physician will need to discuss this with the individual to ensure that any decisions made are fully informed. The reasoning behind any decision should be fully recorded to obviate any later dispute as to how that decision was reached.

The fact that reasonable adjustment might allow a disabled person to continue in employment may have implications for the eligibility of the individual to obtain early retirement on medical grounds. The Act does not give any additional rights of retirement to disabled individuals. Further discussion of this issue is beyond these guidance notes.


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