Defending a Failure to Make Reasonable Adjustment Claim

Responding to Failure to Make Reasonable Adjustment Claim

Claims related to an employer's failure to make reasonable adjustments (FMRAs) are unique to disability discrimination under the Equality Act 2010 (EqA 2010). Defending against such a claim requires dismantling the core elements of the statutory duty imposed on employers by Section 20 of the EqA 2010.

Our strategy focuses on identifying where the claimant fails to meet the legal burden of proof and objectively establishing that the adjustments sought were not reasonable or necessary under the circumstances.

I. Initial Procedural Defence and Jurisdictional Challenges

Before addressing the substance of the claim, it is essential to ensure procedural requirements are met and to challenge jurisdiction where possible.

A. Responding to the Claim (ET3)

The employer (respondent) must submit a response using the ET3 form within 28 days of receiving the claim from the tribunal. The Grounds of Resistance (Box 6) is the first opportunity to detail the defence, requiring a thorough, factual rebuttal of every issue raised by the claimant, including relevant dates, names, and the gist of conversations relied upon.

B. Challenging Time Limits

A claim must usually be submitted within three months of the discriminatory act. However, for an FMRA claim (which involves a failure to act), the omission is deemed to occur when the respondent decided not to act.

A robust defence examines the applicable date:

1. Inconsistent Act

   If the employer performed an act inconsistent with complying with the duty, time runs from that date.

2. Notional Date (Omission)

   If there was no inconsistent act, time runs from the date when the employer might reasonably have been expected to comply with the duty. This must be assessed from the claimant's perspective, focusing on when the reasonable employee would conclude the duty would not be complied with.

3. Continuing Act

   A failure to make reasonable adjustments is generally not considered a continuing act in the same way as other forms of discrimination.

II. Challenging the Triggering of the Duty

The duty to make reasonable adjustments under the EqA 2010 arises only if three statutory elements are met: there is a provision, criterion or practice (PCP), physical feature, or failure to provide an auxiliary aid that places a disabled person at a substantial disadvantage.

A. Did the Employer Know or Ought They to Have Known? (Knowledge Defence)

An employer is exempt from the duty if it did not know, and could not reasonably be expected to know, both that the individual is disabled and that they are likely to be placed at a substantial disadvantage because of that disability.

Key defensive actions here include:

1. Assessing Actual and Constructive Knowledge

   The employer must demonstrate that it took reasonable steps to find out the necessary information, such as engaging occupational health or seeking medical evidence.

2. Reliance on Medical Advice

   Suppose the employer sought external advice (e.g., from occupational health) that concluded the employee was not disabled or not at a substantial disadvantage. In that case, this can support the defence, although the employer must not "rubber stamp" the advice but apply its own mind to the facts.

3. Lack of Co-operation

   Where the employee failed to co-operate with the employer’s attempts to gather information (e.g., declining to release medical information), this may count against the employee’s claim that the employer ought to have had knowledge.

B. Identifying and Defining the PCP/Feature/Aid

The employer must carefully assess if the claim correctly identifies the element causing the disadvantage:

• PCP Definition

  While the term "provision, criterion or practice" is interpreted widely, including informal arrangements and one-off decisions, it generally excludes single acts of ineptitude or inefficiency (e.g., mishandling paperwork or woeful lack of application in disciplinary proceedings). The PCP must relate to some continuous situation or expectation.

• Causation

  The disadvantage must arise because of the disability, connected to the PCP. If the disadvantage resulted from the employee’s choice or refusal to participate for reasons unrelated to the disability, the duty does not arise.

C. Demonstrating Lack of Substantial Disadvantage

The disadvantage must be "substantial," defined as "more than minor or trivial".

• We focus on the objective facts to argue that the PCP/Feature did not place the claimant at a disadvantage that crossed this threshold compared to non-disabled persons.

• The comparison is individual, not group-based: statistical arguments about how the PCP affects disabled persons generally are irrelevant.

• The focus must be on the specific nature and extent of the disadvantage that has been suffered.

D. Duty Extinguished or Not Triggered (Long-Term Absence)

If the employee is on long-term sickness absence, the duty to make adjustments may not be triggered if there is no indication on the horizon that the employee will return to work, even with adjustments.

• If the employee is too ill to return even with adjustments, the duty may not be triggered.

• A change in circumstances (e.g., the employee becoming unable to perform any work due to another factor or accepting a redeployment role) may extinguish the duty entirely, which in turn impacts the calculation of the limitation date.

III. Establishing that Proposed Adjustments were Not Reasonable

If the statutory duty is deemed to have arisen, the defence shifts to demonstrating that the proposed adjustments were not "reasonable." This is an objective test for the tribunal to determine, overriding the employer’s own opinion.

We address the objective factors cited in the EHRC Code:

A. Ineffectiveness (Will the Adjustment Work?)

The most critical factor is efficacy. If an adjustment would be a futile gesture and not alleviate the disadvantage, it is unlikely to be reasonable.

1. The employer is under no duty to make an adjustment that has no real prospect of succeeding.

2. We argue that the proposed steps would not have made a difference to the outcome (e.g., if an adjustment to redundancy criteria would not have saved the job, or providing special equipment would not have eliminated health risks).

3. It is normally wise to seek expert opinion (e.g., medical evidence) on the likely efficacy of any proposed step.

B. Cost and Financial Resources

We demonstrate that the cost of the proposed adjustment would be disproportionate, considering:

• The financial and other costs of adjusting.

• The financial and other resources available to the employer.

• The extent to which the adjustment would disrupt the employer's activities.

• The availability of external assistance (e.g., the Access to Work scheme).

We show that while large employers have greater resources, excessive costs (e.g., providing costly 24/7 specialist support or indefinite pay protection when transferring to a lower-grade role) may still be found unreasonable if they impose a "disproportionate burden".

C. Practicality and Workforce Impact

We argue that the adjustment is impractical or would unduly disrupt the business or workforce.

1. Adjustments must be weighed against other spending priorities and the employer's operational requirements.

2. However, courts recognise that reasonable adjustments may inconvenience non-disabled people, and the employer should show that it actively managed any staff obstruction or unhelpful behaviour. Slotting a disabled employee into a role without competition, which impacts other redundant employees, might be considered an unreasonable step.

IV. Defensive Documentation and Strategy

A strong defence relies on demonstrating proactive, documented engagement by the employer.

A. Consultation and Assessment

Although consultation itself is not a reasonable adjustment, effective consultation is strategically essential. We must demonstrate that the employer:

1. Conducted a proper assessment of the circumstances.

2. Engaged in discussions with the employee, even if the employee was ultimately uncooperative or unreasonably inflexible (as refusal to engage may count against the employee).

3. Obtained relevant medical assessments (e.g., OH reports) and followed up on recommendations where appropriate.

B. Employee Conduct and Trial Periods

We highlight any failure by the employee to cooperate, especially concerning a phased return to work or a trial period in a new role. If an employee insists on terms that make the return unviable, this can support a decision to dismiss or refuse the adjustment.

C. Disciplinary Procedures

If the claim arises from disciplinary action, we demonstrate that reasonable steps were taken to adjust the procedure itself, even if the underlying conduct/capability issues persisted. For instance, ensuring the employee was allowed appropriate representation or modified procedures necessary to facilitate participation.

D. Vicarious and Personal Liability

The claim is typically against the employer. However, the employer remains liable for acts of discrimination committed by an employee in the course of employment (vicarious liability). Individual employees (such as line managers) can also be personally liable for unlawful discrimination. A strategic defence involves establishing the "all reasonable steps" defence to vicarious liability by proving that the employer took all steps to prevent the act. If this defence succeeds, the individual employee may still be found liable.