Rob Marrs, Head of Education at the Society, discusses reasonable adjustments in recruitment and what employers need to do to meet their obligations.
Over the last few months I’ve taken a number of calls from solicitors with disabilities who have found recruitment processes at various legal organisations puzzling at best and troubling at worst.
Equality law recognises that bringing about equality for disabled people may mean that employers change the way in which they operate. This may mean that how employment is structured changes, or that physical barriers are removed, or that extra support may be provided to a disabled worker. This is better known as the duty to make ‘reasonable adjustments’.
Making reasonable adjustments
For instance, one disabled candidate told me he had to do a presentation in the stairwell of an organisation with upstairs offices because there was no lift available. This meant that throughout the interview rather bemused people were walking past on the stairs, causing understandable embarrassment for the interviewee.
Because there was no lift, it would have been reasonable for the organisation to arrange the interview in other premises. And of course the reasonable adjustment duty on solicitors as service providers is anticipatory, so the organisation should already be taking reasonable steps to make sure their services are accessible for their clients and potential clients. How are they making sure they can provide services to clients who are unable to manage stairs?
Another candidate for a role told me he had asked for a scribe in a written assessment for a newly-qualified role. (As an aside, I was amazed that a written assessment was necessary at NQ stage!).
The organisation wouldn’t allow them to bring their own scribe, but instead insisted that a relatively junior administrator step in. The administrator did her best but her lack of scribing experience made the assessment harder. The candidate also wasn’t allowed additional time which – from the outside – would have seemed a reasonable adjustment. The candidate wasn’t surprised when he didn’t get the job.
Would it have been so difficult to allow the candidate to bring their own scribe? Or a neutral scribe from a university? Or would a reasonable adjustment have been making the written test an oral examination instead, to avoid an applicant with restricted manual dexterity being at a disadvantage.
If the candidate had been successful, a perfectly sensible reasonable adjustment would have been buying dictation software for a few hundred pounds. Most adjustments – after all - will not be particularly expensive. Financial assistance may be available under the Access to Work scheme.
How to decide what is a ‘reasonable adjustment’
The calls I’ve taken suggest that sometimes what a disabled candidate may think is a reasonable adjustment and what the employer thinks is a reasonable adjustment are some way apart. How can an employer address that? Simply put, they could speak to the candidate and ask what adjustments are necessary for interview and then – if reasonable – make them.
No one is saying they need to do more than what’s reasonable. Clearly, a big firm of 250 lawyers can make reasonable adjustments that a sole practitioner simply can’t. Reasonableness will also depend on how effective the adjustment would be, how practical it is for the organisation to make, how much it would cost, and the organisation’s resources and size. It’s ultimately an objective test and not simply a matter of what you may personally think is reasonable.
Why do we need reasonable adjustment requirements?
Organisations have a duty to make reasonable adjustments. The point of that duty is to help ensure that, within reason, a disabled candidate has the same access to everything that is involved in getting, doing and keeping a job as a non-disabled person.
Employers are under a positive and proactive duty to take steps to reduce, remove and prevent obstacles a disabled worker or job applicant faces.
Obviously employers can only make adjustments where they are aware – or should reasonably be aware – that a worker or job applicant has a disability. However, because the duty on service providers is anticipatory, solicitors should be thinking in advance about what steps they can take to ensure that disabled people can fully access their services. Such steps will obviously also benefit employees and potential employees. Choosing offices which have ground floor level access will make the organisation more attractive for potential clients as well as benefitting potential employees.
If you do not make adjustments and a disabled applicant can show that there were barriers resulting from their disability you should have identified and reasonable adjustments that you could have made, then the worst case scenario is a claim against you in the Employment Tribunals.
There will be many factors involved in deciding what adjustments to make, what adjustments are reasonable, and this will vary depending on circumstances. Different people may need different adjustments even if they appear to have similar disabilities.
Asking about the need for reasonable adjustments
You can’t ask applicants about their health or a disability except in limited circumstances. For example it’s ok to ask about the need for reasonable adjustments for the recruitment process, including for interview as long as any information provided in response is not used as part of the decision-making process.
It’s also ok to ask about a function that is intrinsic to the job. But that exception is available in limited circumstances.
It should only be after a job has been offered that you ask the applicant about reasonable adjustments for the job itself. Discussing this with the successful applicant will help to ensure that the adjustments are the most effective.
Use the resources available
Look at the guidance on workplace adjustments on the Equality and Human Rights Commission website. And for more details on how the law works in practice there’s the Code of Practice on employment. Also have a look at our own guidance on ‘Ensuring fairness, creating more accessible services’.
It is in everyone’s interest to get this right and it seems that in small pockets of the profession we aren’t quite getting it right.