Prior to 1 October 2004, the Disability Discrimination Act (DDA) provided that, where any arrangements made by or on behalf of an employer placed a disabled person at a substantial disadvantage compared with non-disabled persons, the employer was under a duty to take such steps as were reasonable in the circumstances in order to prevent those arrangements from having that effect - unless he could show that his failure to comply with that duty was 'justified'.
From 1 October 2004 the scope of the duty has been widened, from any 'arrangements made by or on behalf of an employer', to any 'provision, criterion or practice applied by or on behalf of an employer'. And, importantly, the defence of 'justification' is removed. It is therefore no longer possible for an employer to argue that he (or she) was justified in failing to make an adjustment, the question is purely whether such an adjustment would have been reasonable.
In deciding whether an adjustment would have been reasonable the Employment Tribunal will take a number of factors into account:
- whether the changes would be effective;
- whether the changes would be practical;
- how much the changes would cost and how reasonable this would be in terms of the employer's finances;
- whether any assistance (for example a grant) would have been available;
- whether the changes would have breached other legislation, for example Health and Safety guidelines;
- the nature of the employer's activities and the size of the undertaking; and
- (where the changes would be made in relation to a private household) the extent to which making those changes would disrupt that household or any person residing there.
A trial period during which, for example, a disabled person works from home is unlikely, in itself, to count as a reasonable adjustment in a disability discrimination claim. Instead, it will be treated more in the nature of a test as to whether working at home would be a reasonable adjustment. Employers who refuse to allow a trial period of home working could be at a disadvantage if they then argue that allowing the disabled employee to work from home is not a reasonable adjustment, as they have not tested the idea out.
