Defence for failure to make reasonable adjustments

[Holamum]

Hi there.

Does anyone know what the possible defence is for failing to make reasonable adjustments?

The employee had a serious mental health condition (Bipolar Disorder), which the employer knew about. The employee is now complaining because she claims to have suffered an injury because of failure to make reasonable adjustments.

However, no reasonable adjustments were made because employer thought employee was medicated, looked after her own children at home (i.e. she was independent) and was in a senior position at the firm. Is that a good enough defence for failing to make reasonable adjustments?

Are you the employer in this scenario?

Yeah I'm working on the side of the employer.

She made the employer aware of her condition after maternity leave. Occupational health were involved but didn't make any suggestions regarding reasonable adjusments.

She was reported to have been displaying "unusual and erratic behaviour" by colleagues. Her manager didn't pay too much attention to this because employee was medicated, has a family, good job etc.

The employee then became hospitalised and is claiming that the employer should have made reasonable adjustments because they were aware she had a disability and was showing signs of becoming very ill in relation to that disability.

What are the defences for failing to make reasonable adjustments?

What adjustments is she claiming should have been made? Were they reasonable? Did she request them beforehand?

She had asked for her workload to be reduced, in writing. No one looked at this request though.

When an employer knows that an employee has a disability and that a provision, criterion or practice at the workplace puts the employee at a substantial disadvantage compared to the non-disabled they have a positive duty to make reasonable adjustments to avoid the disadvantage.

Possible defences for failure to comply with the duty include:
If the proposed adjustment would only have a minimal effect on the disadvantage.
Prohibitive expense, e.g. a very costly adjustment at a small firm with limited resources.
Practicability, e.g. only installing a lift would avoid the disadvantage and the workplace is a listed building.
Disruption, e.g. the workplace would have to close in order to install the adjustment.

In this case the employer:
Had been informed of the disability.
Received a request for a reduction in her workload ( a standard reasonable adjustment).
Received reports of 'unusual and erratic behaviour.
Failed to exercise their duty to make reasonable adjustments.

The employer's defence appears to boil down to 'We thought she was OK.'
So, to answer your original question, No that isn't a good enough defence.

I think, in short, the employer doesn't have a defence.

In what capacity are you 'working on the side of the employer?' It's quite worrying that you would canvass the opinion of a forum to decide if there was a defence.

If the employer was given a request for reasonable adjustment and colleagues have raised concern, then I can't see how they could use her personal circumstances and seniority to over-rule that.

Or is it that only single, childless employees who are of low seniority are allowed to be ill?

Thanks - that helps a lot. Yes, I suppose this isn't a great place to canvas an opinion, but was getting very desperate...

It might not be too late to recover to situation.
Has the employee already made an Employment Tribunal claim?

"It might not be too late to recover to situation."

That should not be what they are trying to do. They should be accepting that they have got it wrong, not trying to wriggle out of it.

On receipt of reports from colleagues about her 'unusual and erratic behaviour'. Employee's manager telephoned her at home (on a day the employee had off) and threatened to give her a Warning because of the concerns that had been made about her behaviour. This phone call, which came to the employee out of the blue, is one of the things being complained about - employee thinks this shouldn't have been handled on the telephone.

Good grief.

Well, in terms of a defence, sometimes the best defence in employment law is accepting you've got it wrong and making every effort to put those mistakes right, rather than trying to excuse clearly unacceptable treatment.

Everyone makes mistakes and gets things wrong sometimes, it's how you put those things right that counts.

There isn't a way to wriggle out of it. It's already happened.
I was thinking about what happens next.

You are right, step 1 should be to accept that they got it wrong.

1. Apologise
2. Ensure that the employee receives full pay until they recover.
3. Make the requested reasonable adjustment.
4. Get some HR/management training on the Eqality Act 2010.
5. Consider what, if any, other reasonable adjustments should be made- preferably with input from the employee.

OMG the employee was threatened with disciplinary action because of a behaviour related to her known disability!

Apologise twice.

As an aside, it sounds like a priority for the business is going to be training on recognising when support is needed rather than discipline and how to manage that sort of incident. Also, training on Bipolar disorder.

The poor woman. It sounds like she was in crisis, with further pressure heaped on by a manager who didn't appreciate her circumstances.