Under the Disability Discrimination Act 1995 (the “DDA”) employers and other bodies have a duty to make reasonable adjustments where there is a provision, criterion or practice (“PCP”) or a physical feature of premises that places a disabled person at a substantial disadvantage.
In the recent case of Project Management Institute v Latif the EAT upheld the Employment Tribunal’s decision that the Project Management Institute (“PMI”) had failed to make reasonable adjustments. The EAT also clarified the burden of proof in claims for failure to make reasonable adjustments.
Ms Latif lodged a claim for disability discrimination on the basis that PMI had failed to make reasonable adjustments. Ms Latif was registered blind and sought certain adjustments to enable her to take PMI’s professional examination. PMI allowed her to be accompanied by a reader and to have eight, rather than four, hours to sit the exam. However, it did not allow her to take in her own laptop with screen reading software on it or to have that software installed on a computer at the exam centre. PMI considered that there was a security risk in allowing Ms Latif to bring her laptop into the exam and that loading the software on to the computer network would cause network problems.
At the Tribunal hearing, Ms Latif’s Counsel suggested that the software should have been installed on a non-networked computer at the exam centre. PMI accepted this would have been possible and would have eliminated their concerns about security. However PMI argued that the steps they had taken had been sufficient enabling Ms Latif to pass the exam. The Employment Tribunal found that the solution Counsel had suggested would have been a reasonable step and was not disproportionate. PMI should have made this adjustment. PMI was also criticised for failing to carry out an assessment of what adjustments could be made.
The EAT upheld the Employment Tribunal’s decision and agreed that PMI had failed in its duty to make reasonable adjustments.
The EAT agreed that, although a failure to carry out a proper assessment was not in itself a breach of the duty to make reasonable adjustments, a failure to do so may result in a failing to make an adjustment which the assessment would reasonably have identified. The Tribunal had been entitled to find that although PMI had made certain reasonable adjustments, it had not done all that could reasonably have been done.
The EAT also clarified the position regarding the burden of proof in reasonable adjustments cases. The burden of proof passes to the Respondent where there is a PCP, a substantial disadvantage and there is evidence of a potentially reasonable adjustment which has been identified. However, the duty to make reasonable adjustments is not limited to adjustments suggested by the Claimant at the time adjustments are being considered. The Respondent must know at least during the Tribunal hearing what the suggested adjustment is.
What this means for employers
- Employers should be aware that in cases where reasonable adjustments are being considered it is important to engage meaningfully with the particular needs of the individual and the circumstances of the case. PMI was criticised for following its published policy too rigidly rather than considering the particular needs of the Claimant. Policies should be used only as a guide and not as a definite statement of practice.
- The decision clarifies that employers are not required to prove a negative in reasonable adjustment cases. They do not need to show that there were no further adjustments that could have been made, rather they need to deal with the adjustment that has been suggested. The risk however is that the adjustment may be suggested after the event, in fact even during the course of a Tribunal hearing.
The duty to make reasonable adjustments as set out in the DDA is for the employer to “take such steps as it is reasonable, in all the circumstances of the case, for him to take”. However, in this case, the EAT found that the Tribunal was entitled to conclude that, in the circumstances, not all that could reasonably have been done had been done. The concept that the employer should take all reasonable steps, rather than simply “such steps” will no doubt be relied upon by employees. If that proposition is followed by other Tribunals, then an employer’s task in defending a claim for failure to make reasonable adjustments will certainly be made more difficult.