Reasonable adjustments: how far should an employer go?

Under the Equality Act 2010 (EqA 2010), reasonable adjustments may be required where premises, working arrangements or the lack of auxiliary aids put a disabled person at a substantial disadvantage.

It’s important to note at the outset that there is a legal definition of disability which is set out in the EqA 2010, and it is only those who meet this definition that have the protection of the Equality Act and where the duty to make reasonable adjustments arises. In addition, an employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and that their disability was liable to disadvantage them substantially.

Reasonable adjustments are specific to an individual person and can be for physical and/or mental health conditions. It is not enough for employers to provide disabled people with exactly the same working conditions as non-disabled people. Where the duty to make reasonable adjustments arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual’s disadvantage.

If the duty to make reasonable adjustments arises, the question then is how far the employer needs to go when making these adjustments. If an employee alleges a breach of the reasonable adjustments duty, they shall need to establish what the adjustments are which they consider would have been reasonable, with the employer then tasked with demonstrating either that the adjustment would probably not have worked or would have been impracticable.

What is considered reasonable?

An employer will not breach the duty to make adjustments unless it fails to make an adjustment which is considered to be ‘reasonable’.

The Equality and Human Rights Commission Code states that ‘ultimately the test of the ‘reasonableness’ or any step an employer may have to take is an objective one and will depend on the circumstances of the case’. There are various factors that can be taken into account when determining whether an adjustment is reasonable and these can include:

-          the extent to which the adjustment would have ameliorated the disadvantage

-          the extent to which the adjustment was practicable

-          the financial and other costs of making the adjustment, and the extent to which the step would have disrupted the employer’s activities

-          the financial and other resources available to the employer

-          the availability of external financial or other assistance

-          the nature of the employer’s activities and the size of the undertaking

Is there a requirement to make an adjustment if it would not remove the disadvantage?

A recent judgement provided in Hindmarch v North East Ambulance NHS Foundation Trust [2025] EAT 87 has provided further clarity on the adjustments an employer is expected to make. In this case the Employment Appeal Tribunal considered whether the North East Ambulance NHS Foundation Trust (the Trust) failed to make reasonable adjustments when it refused to provide a certain type of face mask to a non-emergency ambulance driver with extreme anxiety from COVID-19. The Trust were under a duty to take reasonable steps to avoid the disadvantage faced by the Claimant, Mr Hindmarch. The disadvantage in this case was him not being able to attend work due to his anxiety about catching COVID-19.

In this case it was initially determined by the Tribunal that the Trust did not fail to make reasonable adjustments, nor did it unfairly dismiss the Mr Hindmarch. The Tribunal explained that they accepted the argument made by the Trust that they had not failed to make a reasonable adjustment because Mr Hindmarch’s anxiety about Covid was so acute that even if he had been given the facemask he requested, there would have been no real prospect that he would have returned to work.  Mr Hindmarch appealed but this was rejected by The Employment Appeal Tribunal who found that the duty to make reasonable adjustments or provide an auxiliary aid would only arise if the adjustment or auxiliary aid would have a real prospect of removing the disadvantage. In this case, the Employment Appeal Tribunal referred to it as “no more than common sense” that if there is no real prospect of an adjustment helping to avoid or reduce the disadvantage, then the employer is under no duty to make the adjustment. In this case, it was accepted by the tribunal that Mr Hindmarsh’s anxiety about Covid was so acute that even if he had been given the facemask he requested, there would have been no real prospect that he would have retuned to work. Based on the evidence, the tribunal was entitled to conclude that providing the specific face mask would have made no difference.

Comments

The EAT judgement is clear that it cannot be reasonable to require an employer to make an adjustment that has no prospect of achieving the desired effect. For such a claim to succeed, it must be shown that there would have been at least a real prospect that the adjustment would have made a difference. This is consistent with previous cases and the EHRC Code.

Unfortunately, there is no set definition of what is to be considered as ‘reasonable’ when it comes to making adjustments and this will depend on the individual circumstances of each case and the individuals involved. Employers are advised to engage with occupational health and the employee to understand the disadvantage suffered and what adjustments could be put in place to realistically avoid this. If there is no real prospect that any suggested adjustments will help remove or reduce the disadvantages or the adjustments are not sustainable, when considering the judgement in the Hindmarch case, it is likely that there would not be a duty on an employer to make them.