Does an employer’s failure to make an assessment of a disabled employee of itself amount to a failure to make a “reasonable adjustment”?

Last year in Tarbuck v Sainsbury’s Supermarkets Ltd the EAT criticised the earlier decision of Mid-Staffordshire General Hospitals NHS Trust v Cambridge and, the DRC's current Code of Practice that a failure to make a proper assessment of reasonable adjustments (which may include consulting the employee) would of itself be a breach of the duty to make reasonable adjustments.

The EAT has considered this issue again in Spence v Intype Libra Ltd. In this case, an IT manager had become disabled and claimed that his employer had failed to make a reasonable adjustment by not obtaining and consulting on a medical report before dismissing him. In rejecting the claim, the EAT stated that an employer “may carry out an assessment and fail to make reasonable adjustments; equally, he may fail to carry out the assessment but make all necessary reasonable adjustments. Mr Spence’s contention is that even if he takes such steps as are reasonable to mitigate or eliminate the harm, he will be potentially liable for any failure to carry out an assessment. We do not think that conclusion is compatible with the language of the legislation.”

Neither Spence and Tarbuck mean that employers should ignore the need to conduct a proper assessment of any adjustments that might be reasonable, including consulting with disabled employees. The desirability of carrying out a risk assessment was not in issue. In both cases, the EAT reminded employers that they will not be able to rely on their ignorance as a defence, if a tribunal takes the view that there were steps that would have been reasonable for the employer to take to alleviate the disadvantage suffered by the disabled person. The essential issue is whether or not reasonable adjustments have been made with or without a risk assessment.

In practice, employers should carry out a proper assessment of whether and, if so, what adjustments can reasonably be made to accommodate a disabled employee. Part of that assessment should be consultation with the disabled employee. Otherwise, employers risk missing a reasonable adjustment which they should have made.

But this may not be the final word. We understand that the DRC is backing a further appeal to the House of Lords to support its contention that a failure to make a proper assessment of reasonable adjustments would of itself be a breach of the duty to make reasonable adjustments under the DDA.