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Fines fear over office access; Employers must make reasonable adjustments to that the disabled can play a full part in the world of work, says legal expert David Ashmore- and some of them won't cost a fortune. But employers who ignore their lehal obligations could end up paying a heavy price, he warns.

Byline: David Ashmore

Employers who plead poverty to avoid their responsibilities to workers with disabilities are putting themselves at risk of hefty Mnes under anti-discrimination laws, warn legal experts.

Companies often assume they can rely on a "can't afford it" defence when faced with the daunting cost of workplace alterations designed to help disabled people access their workplace, according to employment lawyer David Ashmore.

But the argument often won't wash, he warns, because employers fail to make even the simplest of enquiries to establish what Mnancial help might be available from outside organisations to help with alterations to buildings and Koorplans.

Mr Ashmore, a Midlands employment lawyer with law Mrm Reed Smith, argues thats laws passed to provide employers and employees with a Mrm framework of their obligations and rights have become complex and confusing, and are open to a range of interpretations.

Even the Equality and Human Rights Commission website admits "there are no hard and fast rules" to help decide which adjustments might be considered reasonable, he argues.

Although cost of alterations, and an employer's ability to pay, can be a good reason for work not being carried out, for the employer to show that a workplace adjustment was not reasonable on the basis of cost, it needs to prove that it has checked to see what grants or loans might be available, according to Mr Ashmore.

"There is a general duty to make adjustments to the working environment to ensure that disabled people are not placed at a substantial disadvantage," he says.

"So you might have an open-plan of Mce and receive a request to redesign the Koor plan to accommodate a wheelchair-user.

"Is that a reasonable adjustment? I would say that it almost certainly is."

Other adjustments carry no price tag at all but do require some Kexibility - such as giving time off for medical treatment, or allowing speci Mc patterns of shift work.

"A lot of it is about thinking what needs to be done and how it can be achieved-not dismissing it out of hand because there isn't a budget for it," says Mr Ashmore.

"There are organisations out there that can help with things like the cost of putting in a lift, and any employer who dismisses disabled workers because they can't get to the Mrst or second Koor to do their jobs is going to be in big trouble.

"Clearly, if no support is available, or if only limited Mnancial assistance is on offer, it is more likely that refusing to make an adjustment will be reasonable.

"Disability discrimination isn't like other forms of discrimination like sex or race, because it can sometimes be justiMed.

"If someone becomes so ill with their disability that they can no longer do their job to the required standard, an employer may be justiMed in dismissing them.

"But this only applies only if he can establish that there were no reasonable adjustments that could have been made which would have enabled the employee to perform to a satisfactory level."

Complicated though the regulations are, says Mr Ashmore, there has been some welcome clariMcation of the rules covering sick pay and the disabled.

He points to a recent Court of Appeal case, involving HM Revenue & Customs, which has resulted in a judgement which clears employers of any obligation to pay disabled workers more sick pay than their able-bodied colleagues.

The case centred around a disabled employee who had taken 365 days of sick leave over a four year period - 320 of them disability-related.

"The employer had a policy which stated that after a certain period of time, and a certain number of absences, the employee would no longer be paid," says Mr Ashmore. "The question was whether HMRC was required to make an adjustment to their sick pay policy to keep paying her in circumstances where the sick pay policy said they didn't need to, and in which people without disabilities would not have been treated in the same way."

According to Mr Ashmore, the court ruled that it wasn't a "reasonable adjustment" to extend sick pay in this way, and that the aim of the Disability Discrimination Act was to recognise the dignity of the disabled by allowing them to play a full part in the world of work - not to treat them as objects of charity."

The court also recognised that, in most cases, simply paying a person more sick pay does not enable them to return to work any quicker.

In fact, an open-ended commitment to indeM- nite sick pay for the disabled would have acted as a disincentive to return to work.

"This was an important decision, particularly for the public sector, where sick pay rates tend to be higher than in private companies," says Mr Ashmore.

"And it clears up an area of uncertainty in the Act, which is still viewed with a lot of suspicion by many employers - even to the point of discouraging Mrms from employing disabled people in the Mrst place."

"You might have an open-plan office and receive a request to redesign the floor plan to accommodate a wheelchair-user. "Is that a reasonable adjustment? I would say that it almost certainly is

Employment lawyer David Ashmore

Disabled People in the Workplace is printed and published by The Birmingham Post, Weaman Street, Birmingham B4 6AT. Edited and designed by supplements editor David Faers on 0121 234 5224 or Advertising contact Andy George on 0121 234 5565 or


Your company need you to be on the ball when it comes to anti-discrimination laws especially at a time when they have become complex and confusing
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Title Annotation:Business
Publication:The Birmingham Post (England)
Date:May 13, 2008
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