The Disability Discrimination Act 1995 (the DDA) introduced measures aimed at ending discrimination against disabled people. The decision in Allen v Royal Bank of Scotland Group plc [2009] PLSCS 59 highlighted the duty imposed on service providers to make premises accessible to disabled people.
However, the DDA also imposes a general duty to make reasonable adjustments for disabled people. In addition, it requires that where a physical feature of an employer’s premises places a disabled person at a substantial disadvantage, the employer has a specific duty to take reasonable steps to overcome that difficulty. The DDA sets out a number of factors that should be taken into account in determining what steps it might be reasonable to expect an employer to take, and cites specific examples of the types of steps that might be taken: see section 18B.
The Code of Practice: Employment and Occupation suggests that it would be reasonable to relocate the workstation of an employee who uses a wheelchair from inaccessible third-floor offices to those on the ground floor. Does this mean that employers have a duty to acquire a tenancy of additional premises to accommodate the needs of a disabled employee?
In Shaw & Co Solicitors v Atkins [2009] PLSCS 84, the Employment Appeal Tribunal (EAT) had to decide whether a law firm had discriminated against an employee who used a wheelchair by failing to rent empty premises on the ground floor of the building in which its offices were situated to accommodate her. At first instance, the Employment Tribunal ruled that adjustment was reasonable and that the law firm should have made it.
However, the EAT disagreed. It was not persuaded that an employer would never be under a duty to make an adjustment requiring the acquisition of additional premises, but said that the circumstances would have to be exceptional for such a duty to arise. In this case, the evidence indicated that the landlord would have refused to subdivide the ground-floor offices and then sublet part of them on a short-term lease. In addition, the cost of rent, rates and insurance were factors that should not have been ignored by the first instance tribunal.
Did the law firm have a duty to install a stairlift to enable the employee to reach the upper floors? The EAT noted that the cost of doing so would be substantial. It directed the lower tribunal to consider the point, after taking into account the capital cost of installation, together with the additional costs of obtaining the landlord’s permission to install the stairlift, the cost of its maintenance and the cost of reinstating the premises at the end of the lease.
What constitutes a reasonable adjustment will vary in accordance with the circumstances of each particular case, the costs involved and the resources available to fund alteration. Employers that need to adapt premises to meet the needs of a disabled person may themselves have access to financial assistance, via the Access to Work scheme.
Allyson Colby is a property law consultant
