Most employment law claims don’t begin with bad intentions. They begin with assumptions about an employee’s needs or circumstances.
When business owners think about accessibility and the Equality Act 2010, the image that tends to come to mind is a wheelchair ramp or perhaps a large-print menu. Physical access.
These are common and often straightforward adjustments to make.
The gap between what employers think they’re doing and what the law actually requires is where most problems quietly take root.
It is important that businesses recognise this, because the five mistakes below are remarkably common, often made in good faith and entirely avoidable with the right knowledge in place.
As we have marked Global Accessibility Awareness Day, now is a great time to review your approach.
The Equality Act 2010 protects employees and job applicants from discrimination on the basis of a number of protected characteristics, including disability.
Two of its provisions are particularly relevant to business owners managing day-to-day operations.
The first is the duty to make reasonable adjustments. Where a provision or practice or a physical feature of the workplace, puts a disabled person at a substantial disadvantage compared to a non-disabled person, employers are required to take reasonable steps to remove that disadvantage. Reasonable adjustments are not discretionary – they are a legal duty.
The second is indirect discrimination. This occurs when an employer applies a practice that applies equally to everyone but which, in practice, puts people sharing a protected characteristic at a particular disadvantage and the employer cannot justify it as a proportionate means of achieving a legitimate aim.
Indirect discrimination is often unintentional. However, it doesn’t need to be intentional to be unlawful.
Neither of these requires a complaint to be made before the duty exists. The duty is ongoing and applies to the way you run your business every day.
With that in mind, here are the five mistakes worth examining within your own business.
This is perhaps the most pervasive misconception in employment law. Physical accessibility matters enormously, but it only accounts for a fraction of the reasonable adjustments that employers are likely to be asked to make or should proactively be making.
Disability under the Equality Act has a deliberately wide definition. It covers any physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
That includes conditions such as depression, anxiety, ADHD, autism, dyslexia, chronic pain, Crohn’s disease and many others that carry no visible indicators at all.
Reasonable adjustments in these contexts might include changes to working hours or shift patterns, allowing home or hybrid working, modifying how performance is assessed, providing written rather than verbal instructions, adjusting the way meetings are run or changing deadlines and workload distribution during periods of difficulty.
The test is not whether an adjustment is easy or cheap. It is whether it is reasonable in your specific circumstances and Employment Tribunals will weigh factors, including the size and resources of your business, the cost involved, the practicality of the adjustment and the potential benefit to the employee.
To address this, ask yourself, regularly, whether the way you work puts any of your employees at a disadvantage they shouldn’t be at. If you identify an accessibility issue, address it at the earliest opportunity.
The duty to make reasonable adjustments is not reactive. It does not switch on the moment an employee raises a formal complaint or submits a GP letter.
No, it arises when the employer knows or could reasonably be expected to know, that an employee is disabled and is experiencing a disadvantage as a result.
This matters because it shifts the obligation toward awareness and action, rather than response.
If a manager notices that an employee is consistently struggling with a particular aspect of their role, is frequently absent or seems to be in difficulty and the employer does nothing because no formal disclosure has been made, that is unlikely to be a defensible position if a Tribunal later asks what steps were taken.
Employers don’t need certainty to start a conversation. They need reasonable grounds to suspect that support might be needed. A straightforward, well-handled check-in, which is conducted sensitively and without pressure, both discharges part of your duty and demonstrates good faith.
Equally, indirect discrimination does not require a complaint to have been made. A blanket policy requiring all staff to work fixed full-time hours might seem entirely neutral on its face.
In practice, it may disproportionately disadvantage employees with certain disabilities and if you cannot objectively justify that requirement, the policy is potentially unlawful regardless of whether anyone has raised it.
What this means in practice is that you should build regular, low-pressure conversations about working arrangements and support needs into your culture. Don’t wait for the grievance to happen.
Granting a flexible working arrangement to one employee while declining a similar request from another, without clear and documented reasoning, can create a strong evidential basis for a discrimination claim.
This doesn’t mean every adjustment must be identical. Adjustments are, by their nature, tailored to the individual and their specific circumstances.
Two employees with the same condition may need entirely different support, so the point is not uniformity, but rather the fairness of process.
What Tribunals look for is evidence that requests were taken seriously, assessed on their merits, based on up-to-date information and that decisions were clearly reasoned and consistently applied.
If your approach to reasonable adjustments relies on individual managers making judgment calls in isolation, the outcomes are likely to be inconsistent, which may mean that they are legally problematic.
As an employer, you should create a clear process for receiving, assessing and recording reasonable adjustment requests and make sure it is followed every time.
Your legal obligations under the Equality Act are discharged through your managers.
They are the people conducting return-to-work interviews, managing performance, making decisions about working patterns, running one-to-ones and often the first to notice when an employee is struggling.
If they do not understand the law, do not know how to have sensitive conversations about disability and adjustment and have not been trained to recognise indirect discrimination in the policies they implement daily, then your business is exposed – regardless of how robust your written policies are.
Employer liability for discrimination carried out by employees in the course of their employment is, as a rule, strict.
The defence available under the Equality Act requires the employer to demonstrate that they took all reasonable steps to prevent the discriminatory act.
“We had a policy” is not, on its own, sufficient. “We trained our managers, monitored practice and had clear escalation routes” is a considerably stronger position.
Common failure points at management level include:
Training on the Equality Act, reasonable adjustments and inclusive management should be part of your regular management development programme.
A disability policy written in 2018 may not reflect current understanding of neurodiversity, mental health conditions or the implications of hybrid working for employees with certain disabilities.
A sickness absence policy that treats all absences identically may be operating as indirect discrimination without anyone having noticed.
Similarly, blanket return-to-work criteria, fixed capability thresholds and automatic escalation processes can all become problematic if they have not been reviewed in light of the Equality Act’s requirements and contemporary best practice.
A policy sitting in a shared drive that nobody reads, that managers have not been trained on and that has not been reviewed for several years is not evidence of a well-run workplace.
It is a paper trail that tells a Tribunal the business knew what it was supposed to do and didn’t check whether it was doing it.
If you haven’t recently, please review your policies annually, involve your managers in that process and take legal advice if you are uncertain whether they reflect current obligations.
None of these mistakes requires malice. Most of them are made by employers who are trying to do the right thing but are working from an outdated understanding of what the right thing actually involves.
Accessibility compliance should not be viewed as a burden. It is a management discipline that is considerably less expensive to get right the first time, as opposed to the stress, costs and potential reputational damage when things go wrong.
If you would like to review your approach to reasonable adjustments or disability discrimination compliance, our employment law team would be happy to help you review your policies, processes and approach to reasonable adjustments.
