DISABILITY and EMPLOYMENT LAW

Disability has been added as a protected characteristic under the Discrimination (Jersey) Law 2013.

Since 1st September 2018, disability has been added as a protected characteristic under the Discrimination (Jersey) Law 2013. Despite its recent addition, discrimination is already having an impact in Jersey. According to the Jersey Employment and Discrimination Tribunal Annual Report 2018, discrimination accounted for over 11% of all claims in 2018. This is a startling statistic considering it was only introduced in September 2018. When considering all the relevant legal issues of this addition for our clients, we felt that it was important to ensure that the law was put into context and to consider the wider implications for people with a disability and to break down some of the barriers to employment faced by those with a disability in the Island.

We decided to interview some of our key contacts and to put together this publication.

We hope you will find this interesting and informative.

BCR Law
Employment Law Team

Interview questions
with two BCR Employees

BCR Employee 1

Question: What disability or disabilities do you suffer from?

I suffer from a hereditary disability called Ehlers-Danlos syndrome. This is a disability which effects the connective tissue in the body (so anything that is attached to any muscle ranging from ligaments to skin) and basically the connective tissue is too “stretchy”.

Question: Could you please explain how this disability affected your ability to work?

My ability to work is impacted through my connective tissue being too flexible. This means I pick up a lot of injuries as the connective tissue cannot hold my body limbs in place for a sustainable period of time. It also means that sitting down at my desk is the worst thing for my muscles as I need to keep moving to avoid injuries arising.

As a result of the connective tissue being overly flexible I expend a vast amount of energy trying to support my body. This means that my energy levels can be quite low compared to someone who does not have my disability.

Question: What are most people’s reaction when they find out you are disabled?

People are usually shocked to find out I am disabled because the disability is not apparent or visible. People often do not realise the severity of my disability and think that I am exaggerating or that I am a hypochondriac because the disability it is not obvious to them.

Question: What, if any, adaptations have you or your employer made to make sure that you can work at your maximum potential?

My employer has allowed me to work from home on certain days during the week. I find this beneficial as there is no morning rush and I don’t have to hold conversations and meetings as verbal communication can be very tiring and I can conserve energy and focus more easily at home.

“My employer has allowed me to work from home on certain days during the week.”

My employer has also provided me with a settee that I can use to lie down on and take a rest/meditation period for 10-15 minutes twice a day. I normally try to do this once in the morning and once in the afternoon.

My employer also allows me to work flexible hours. I start early as this is when I have most energy and am most effective at work and this allows me to leave early because as the day progresses, I find that my energy (and therefore concentration) levels decrease significantly.

Question: Is there anything more that could be done to enhance your ability to work with the conditions that you have?

No.

Question: Have you ever faced any prejudices or lack of understanding in relation to your disability?

I do face prejudices on a frequent basis. I have a disabled parking badge as a result of my condition and when either my husband (who is collecting me) or I park the car in the disabled space, I am occasionally criticised for parking in the disabled space as my disability cannot been seen.

As the day goes, I find myself getting more and more tired, this impacts my ability to attend both social and business development events if they are held in the evening. Not everyone understands this and why I cannot attend- it isn’t that I am not sociable!

Question: Have you ever faced any discrimination as a result of your disability?

No.

Question: Is there any changes to the law that would make working with a disability easier?

No.

BCR Employee 2

Question: What disability or disabilities do you suffer from?

I suffer from partial deafness in my left ear. I struggle to understand low pitched voices and sounds but I am capable of understanding high pitched sounds.

Question: Could you please explain how this disability affected your ability to work?

It gives me great anxiety suffering from this disability because when I don’t hear someone or do not fully understand, I start to panic. Now that I have got my hearing aids, it has made a massive difference.

“It gives me great anxiety suffering from this disability because when I don’t hear someone or do not fully understand, I start to panic. Now that I have got my hearing aids, it has made a massive difference.”

I cope with this disability by making sure that people speak to me, face-to-face, as the sound can be projected elsewhere and I struggle to hear the instructions and understand fully what I am supposed to do. It does help when I am face to face and able to lip-read but this is only in exceptional circumstances.

Having this disability has affected my ability to join in on general social events. If we were to go out for a drink and the room is noisy and echoes, I would struggle to understand the conversation.

Question: What are most people’s reaction when they find out you are disabled?

People will often say that I have got selective hearing because I can hear high pitched voices / sounds but low pitched sounds I struggle with. If I say I have a hearing deficiency, the majority of people I have come across will think that raising their voice is helpful, when, in fact, if they spoke clearly and directly at me, this would improve my ability to hear them which will enhance work performance.

Question: What, if any, adaptations have you or your employer made to make sure that you can work at your maximum potential?

I have been in contact with the Audiology Department at the hospital and received a hearing aid upgrade, (which I didn’t know was available). I also suffer from tinnitus which can be extremely frustrating when trying to concentrate on a conversation. I raised this at the audiology meeting with Jane Rothwell (my hearing mentor) and she has now added a ‘bolt on’ to reduce the noise such as listening to ‘white noise’ to dim out the ‘hissing tinnitus sound’. This white noise comes in the form of different pitches of sound, my preference is ‘the ebbing tide’.

Question: Is there anything more that could be done to enhance your ability to work with the conditions that you have?

The more eye-contact I can get with someone who is talking, the better. I find it a lot easier to hear people when they are speaking directly to me rather than behind me, turning away from me or talking across a room as they are walking away.

Question: Is there any changes to the law that would make working with a disability easier?

I was aware that the Protected Characteristic of Disability had been added to the Discrimination Law had come, but I don’t think many others are aware. I truly believe that there is a lack of awareness in Jersey about protected characteristic. I believe that the audiology department at the hospital and employers in Jersey should be promoting this.

Kim Royle
BG Romeril Limited

Question: Do you currently have any employees working for your Company who have a “disability” as defined under the Discrimination (Jersey) Law 2013, if so how many? What are your initial thoughts when you are told or informed about an employee, or a potential employee, who has a disability looking for employment with your Company?

Yes, we currently employ 5 people that we know have disabilities defined under the above Law. Once we are informed by the prospective employee, we look to see how that disability will affect the prospective employee’s ability to complete their duties and therefore what adjustments we may need to make to support them in their role. At Romerils I have not come across a negative attitude towards employing those with disabilities and, more often than not, we will always try and accommodate any disability.

Question: Do you find that employees with disabilities may be treated more favourably than those without? If so, how can you go about bringing equal treatment to all employees regardless as to whether they have a disability or not?
Some individuals may feel that those with disabilities are over compensated. It is hard to generalise if those with disabilities are treated more favourably as every disability is different and requires different adjustments. Some adjustments could be: providing a parking space close to the premises, shorter hours of work, moving desk location in the office such as an office with a window and brought in supplemental or enhanced technology.

When it comes to colleagues being treated equally, I believe that this largely comes down to the culture of a business. At Romerils, there is a longstanding, family culture , that I’m proud to be part of, by which colleagues treat others how they wish to be treated and will support and assist others where required. People have an understanding that adjustments are made for a reason- I think most people would rather not have a disability than to have one but be able to obtain a parking space!

Question: Do you think that employers in Jersey may see that employing someone with a disability may put additional burden on the other members of staff in regard to more mentoring and training needed.
It is arguable that this is a possibility. Some employers might worry that someone who has a disability will take more time off work and therefore add burden on the other employees to cover shifts. In my personal experience, I do not feel at Romerils that our employees feel that there is an extra burden on them when dealing with disabled colleagues.

Question: What preparations have you made to accommodate those with disabilities whether it be customers or employees?
A number of us have attended training at both JACS and JET. JET run some really useful training sessions which focus on understanding more about the different types of disabilities and what we can do as employers and sales assistants to be as inclusive as possible.. On a practical note, we have made ramps more identifiable and have also had bright coloured tape put on our stairs to make identifiable for those with visual impairments. We have also changed our job description too to be more in line with the vacant position. For example, it would no longer be an automatic requirement in all roles across the business to have good verbal communication skills, it is very much role specific. Employers tend to add phrases such as “good verbal communication skills” as an essential requirement for all roles, when, in fact, this might not be the case. This may put off a person with a verbal communication disability from even applying for the role and they might have had exactly the right skills for the role.

Question: Since Disability was added to the Discrimination Law as a protected characteristic, have you had to change your approach to working with disabled people?
There has not been a significant change in our approach to working with disabled people but we are certainly trying to ensure we educate ourselves to be as effective and inclusive as possible. We have always cared and tried to go above and beyond to accommodate those with disabilities. We do believe that there can always improvements and we strive to make Romerils whether it be our employees, premises or accessibility, a disability friendly environment.

Question: If the disability is not apparent, how do you go about investigate whether an employee is disabled or not? What procedures do you currently have in place?
There are generally two approaches to communication on disability. Some people are very open about and will tell you at the interview stage that they have a particular disability or what reasonable adjustments they will require in order to enable them to do the job to the best of their ability.

Others are more private and may not want an employer to know about their disability, perhaps for fear of prejudice and sometimes, we don’t need to know as it has no effect on their role. We may notice slightly unique or unusual behavioural patterns and if this behaviour is affecting their role, their colleagues or of concern, then we might ask the individual to come for an informal chat about our concerns. We will always be considerate and understanding that this may be something that the individual may want to keep confidential from their employer and also their colleagues. It is our policy at Romerils that for any prolonged period of absence, we will hold a “return to work” interview. We will often chat to the employee in question about the absence and ask if there is anything Romerils can do to assist and minimise the period of absence in the future or if there is any other reason for their absence that we should be made aware about.

Question: What have disabled employees brought to your business in terms of benefit?
We had an employee come and do a work placement from a charity and we have ended up employing them. This has been enormously successful. This person is a very reliable and valued employee and colleague. We find there can be an educational benefit from employing and working with those with disabilities in that we learn about different disabilities, what steps are required to accommodate their needs so that those with disabilities can reach their maximum potential.

Question: Have you encountered any challenges in employing anyone with a disability?
Yes, there have been some challenges with people we have employed with a disability but these challenges were nothing to do with their disability. Sometimes those with particular mental disabilities have colourful language and that is something that we will always get across to all our employees regardless of disability, is that they have to be aware of their surroundings and recognise that they are in a professional environment and those standards are not acceptable at the company.

Jason Loveless
Les Amis Limited

Question: Can you give me some background on Les Amis please?
Les Amis supports 140 residents and their families in the Island. Some are supported as full time residents and others through their Residential Respite and Domiciliary Care services. Les Amis operates 16 houses within the community.

Question: Do your staff face challenges working with your residents?
There are challenges in working with some of the residents at Les Amis, who have a range of physical and cognitive disabilities as well as complex emotional needs. They can be vulnerable and there may be behaviour that challenges. Les Amis employs a full-time Behavioural Support Manager to support its residents and staff. They also have the only full-time MaKaton (sign language) Trainer, who is sponsored by the Lloyds Bank Foundation.

All staff have access to a free counselling service to support them in dealing with the challenges of their work.
The induction programme for staff is a 6 week programme at the end of which every staff member must pass and hold a Care Certificate. There is significant in-house training programmes, including on Safeguarding and Discrimination and, of course, first aid training is essential. Employees work-shadow their supervisors during the induction procedure.

Question: Do you employ anyone with a disability?
Yes: Les Amis employs some of its residents within its recycling and gardening services. Others work as volunteers at fundraising events for the charity.
Les Amis support their residents in employment without any financial contribution from the States. This is due to the fact that the Long Term Care scheme relates only to the care of residents and this would not include supporting them into employment.

Residents work in the following areas for Les Amis: in the recycling team, the gardening team and the car washing team. They are paid at least the minimum wage and all have employment contracts which provide them with employee rights in compliance with the law.

The car washing teams work on the Les Amis vehicles and the garden team work on the charity’s own gardens and land.

The re-cycling team collects re-cyclable items from local businesses, including plastic, cardboard and aluminium cans. They also collect cooking oil from 120 local restaurants and cafes and this is turned into bio-fuel. This scheme is great for raising awareness and understanding of disabilities within the local business community. It breaks down barriers.

All Les Amis residents working as employees are supported to understand that, as employees, there are consequences of their actions. This helps those residents understand and work within Society’s rules. This means ensuring that they are treated (within reason) the same as other employees and need to behave as responsible employees, complying with the charity’s employment policies. Jason explained that it doesn’t always help an individual to “over-compensate” for the disability.

Question: What are the positive aspects of employing your residents?
Our employee residents are enthusiastic, focussed and committed to the task at hand. They are also great ambassadors for the charity!

Comments from Bronwyn Gomes at Enable Jersey

Question: Could tell us a bit about Enable Jersey and what the charity does across the islands?
We are a small charity working to remove barriers that limit opportunities for disabled Islanders. We offer advice and support. We organise a range of events and activities. We also have a funding program that provides financial support to individuals in need and sponsors or partners with organisations aiming to make a positive difference to the lives of disabled people living in Jersey.

Question: What do you think the general response of employers is when they find out a candidate or employee is disabled?
Sadly, prevailing misconceptions are that people with disabilities are less capable, will cost more to employ and be difficult to performance manage. There is a strong business case for employing people with disabilities. People with disabilities tend to have lower than average absenteeism, lead to reduced staff turnover, access and inside knowledge to new customer base, competitive recruitment edge and a large untapped talent pool.

Question: Could you tell us about any adaptations either you or an employer has made to ensure that a person with disabilities would be able to work at their full potential?
One that immediately springs to mind is the location of a person’s desks. Someone with Autism or ADHD may work better if their desk is not positioned near a thoroughfare or near to where staff tend to congregate for a chat, as it may be more difficult for them to filter out these types of distractions.

Question: Is there anything more that could be done to enhance disabled employees ability to enter into the workplace?
Invest in training HR professionals so that they are skilled in targeted recruitment, interviewing, on-boarding and managing employees with a disability. What gets measured gets done – set targets and goals to hire people with disabilities and include them in performance appraisals of senior management.
There is a common misconception that disabled people need to be treated differently. They don’t. It is about treating people appropriately.

Question: Is there any changes to the law that would make working with a disability easier?
The biggest and most positive difference will come when attitudes change, and this is something that can’t be legislated. We need to work together to create an environment for change which allows for a cultural shift across all parts of society.

Comments from Paddy Haversham-Quaid
at Jersey Cheshire Home

Question: The Jersey Cheshire Home is the only residential facility on the island, caring solely for physically disabled adults. What particular challenges does that face? Being the sole facility on the Island, what could other facilities do to accommodate those who are physically disabled?
We have no building challenges as we are a purpose-built home set up and adapted to be able to do this work over the last 35 years ago. We have a unique facility here with an Aquatherapy and Physiotherapy centre that residents and others alike can benefit from. We’ve recently had the Big Build Campaign and extended the home so we can now accommodate 28 residents. Our residents have debilitating physical challenges such as MS, Motor Neuron through to recovering from brain injuries and trauma, strokes, tumours etc. Our challenges are financial. We receive funds of long term care value, yet costs are significantly higher. It costs us £7k a day to operate the home. The Big Build cost £2 million and we are still fundraising to replenish those funds. Another struggle is in finding the right qualified staff that our residents deserve and need.

Other organisations need to consider how they might adjust their premises to accommodate visitors with physical disabilities and how they might train their employees to have a ‘can do’ approach to assisting people with disabilities coming into their workplace. Having staff with the right attitude is particularly important for organisations that have listed or difficult buildings to adjust, as staff who are helpful and considerate of others’ needs can compensate for being unable to physically alter your premises.

Question: The JCH is setting up a new campaign called The Big 2020 Ready Campaign, what types of business will this be aimed at? What industry do you feel will be affected most by the requirement to make reasonable adjustments to accommodate those with disabled features.
Although every industry will be touched by the need to make reasonable adjustments, such as hospitality, large corporates, leisure, small businesses, charities etc. we want to stress that these adjustments are not always about ramps and automatic doors, but also about education and how to approach and respond to someone with a disability, and recognising that not all disabilities are visible.

We believe the government of Jersey is going to be the industry most likely to be most affected because it serves every citizen. People with disabilities are likely to have to visit departments such as social security, health, hospital, social care services, housing etc. Added to this is the requirement for the States of Jersey to consider adjustments that are needed to the island’s infrastructure and environment, such as widening pavements, dropping kerbs, providing publicly accessible toilets etc.

Question: How will you assist organisations to meet the deadline? Will you carrying out searches of the property to make sure any reasonable adjustments are made, or, recommending where a reasonable adjustment could be made?
Our approach is not to audit premises, we are taking a more practical approach. Our approach is to demonstrate to organisations what is possible within a building. So, we will be inviting organisations to take a tour of the Home and in exchange some of our residents will take a tour of their premises. We hope that what organisations see and learn from visiting us they will take back into their environments, and by having our residents visit them it will highlight where they need to make adjustments.

Question: Everyone is prone to unconscious bias. What initiatives / workshops are you going to be running in order to make a behavioural adjustment to employers.
As part of the tour of the Cheshire Home organisations will be invited to a short presentation about how to engage with people with disabilities. A lot of people are fearful that they will say or do the wrong thing around someone with a disability or will find communication impossible or embarrassing. We will give them some hints and tips to make those interactions less awkward. By visiting us and our residents visiting them we are hoping to break down some of those unconscious biases that people have around disability. Simply put, think about how you would like to be approached and addressed, and be kind to everyone!

Question: Is there a set criteria that employers must have to be eligible for this assistance or will you be providing assistance to all of those in need.
We are hoping to hear from lots of different organisations, big or small, across all sectors and not excluding anyone.
Question: Should employers need assistance, who is the best person to contact and how can they contact you?
Paddy Haversham-Quaid, paddy@jerseycheshirehome.je

Disability discrimination:
Reasonable Adjustments

Prior to 1 September 2018 discrimination on the grounds of disability was not a protected characteristic in Jersey. Effective 1 September 2018, disability joined discrimination on the grounds of race, age, sex, sexual orientation, gender re-assignment, pregnancy and maternity as a set of protected characteristics which must not be infringed by employers. The change has brought Jersey closer to the UK positon as set out in the Equality Act 2010. The only UK protected characteristic now not covered by legislation in Jersey is religion or belief, or an individual’s lack of religion or belief.

Individuals with a disability will now have the right to make a complaint to the Employment and Discrimination Tribunal if they believe they have experienced discrimination. It is worth noting that discrimination can take place at a number of stages, even potentially prior to employment commencing.

The Discrimination (Jersey) Law 2013 imposes a duty on employers to make reasonable adjustments to help job applicants, employees and former employees with a disability in certain circumstances.

The law provides that an individual can avail themselves of the protected characteristic where they have one or more long term physical, mental, intellectual or sensory impairments which can adversely affect their ability to engage or participate in any activity in respect of which an act of discrimination is prohibited under the law. A long term impairment is one which has lasted (or is expected to last) for not less than 6 months or is expected to last until the end of the person’s life.

Discrimination can occur in 4 different ways:

  1. Direct discrimination – treatment of an individual less favourably than another person because of their disabilities or something arising as a consequence of their disability. For example providing a negative verbal reference because of a former employee’s disability-related absence;
  2. Indirect – the application of a provision, criterion or practice, that disadvantages people with a particular characteristic. For example having a company policy in place which provides all staff must attend head office to undertake a training course if they want to seek a promotion. This could be difficult for employees with a disability, and there is no reason why they could not video conference the training, or have the training session conducted at their office;
  3. Victimisation – This is when you are treated badly because you have made a complaint of discrimination. It can also occur if you are supporting a person without a disability who has made a complaint of discrimination. For example an employee has made a complaint of disability discrimination. The employer threatens to sack them unless they withdraw the complaint; and
  4. Harassment – occurs when someone treats you in a way that makes you feel humiliated, offended or degraded. For example a staff member with a disability is regularly sworn at and called names by colleagues at work because of their disability.

Disability Specific Claims
When dealing with disability discrimination, there are two specific claims employers are likely to encounter:-

  1. Discrimination arising from disability- this occurs where someone is treated ‘unfavourably’ because of something linked to their disability, but not because of the disability itself. For example, difficulties in using public transport.
  2. Failure to make ‘reasonable adjustments’- this occurs where an employer fails to make reasonable changes or modifications to their workplace for a job applicant or employee who has a disability. If adjustments are ‘reasonable’, an employer must make them to ensure its workplace or practices do not disadvantage a job applicant or employee with a disability already employed with the organisation. For example, failure to reallocate a duty an employee with a disability cannot undertake, e.g. reallocating the telephone duties of an applicant with hearing loss.

However, an employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question has a disability and is likely to be placed at a substantial disadvantage because of their disability. It is for an employment tribunal to objectively determine whether a particular adjustment would have been reasonable to make in the circumstances.

When considering this, a tribunal will take into account matters such as whether the adjustment would have removed the disadvantage faced by the person with the disability, the cost of the adjustment in the light of the employer’s financial resources, and the disruption that the adjustment would have had on the employer’s activities.

Physical features
The duty to make reasonable adjustments can arise where a physical feature of the employer’s premises puts a person with a disability at a substantial disadvantage in comparison with those who do not have a disability. The phrase “physical feature” can be defined as:

  • A feature arising from the design or construction of a building;
  • A feature of an approach to, exit from or access to a building;
  • A fixture or fitting, furniture, furnishings, materials, equipment or other chattels, in or on premises;
  • Any other physical element or quality.

An example of this could be an employer having clear glass doors at the end of a corridor that could present a hazard for a visually impaired worker. This is a substantial disadvantage caused by the physical features of the workplace.

The duty to make reasonable adjustments to premises will apply in Jersey from 1 September 2020 to give businesses plenty time to plan any necessary changes.

Substantial disadvantage
An employer does not have to automatically make adjustments once a job applicant or employee has a disability. For the duty to arise, the job applicant or employee must also be placed at a “substantial disadvantage” in comparison with persons who do not have a disability. A substantial disadvantage is anything that is more than minor or trivial. The substantial disadvantage must be caused by a provision, criterion or practice, physical feature of the premises or the lack of provision of an auxiliary aid that would assist the person with a disability. The test for substantial disadvantage is based on the facts of the case. It is worth keeping in mind that the aim of the adjustments the employer makes is to remove or reduce the substantial disadvantage.

Knowledge of disability
It is important to note that the obligation imposed by the law is not to make adjustments to cater for the employment of people with disabilities generally. The duty arises in relation to particular identifiable individual. An employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know, that a person has (or has had) a disability and is likely to be placed at a substantial disadvantage.

An employer can also be placed under a duty to make reasonable adjustments on the basis it ought to have known both that the employee had a disability and that the disability could impact the employee’s ability to carry out day to day tasks. An example of a situation where the employer could be deemed to have constructive knowledge of an employee’s disability is where a line manager sees or is made aware of the employee’s application for disabled tax credit or income support.

The more challenging situation for employers is where the employee discloses the disability to a colleague or there is office gossip about a potential disability e.g. “John is blind as a bat… have you seen how large his email font is” . We suspect argued correctly this could give the employer the sufficient knowledge to satisfy the “ought to have known” test that John could have a recognised disability.

Other examples where the Employer “ought to have known”
A worker who deals with customers by phone at a call centre has depression which sometimes causes her to cry at work. She has difficulty dealing with customer enquiries when the symptoms of her depression are severe. It is likely to be reasonable for the employer to discuss with the worker whether her crying is connected to a disability and whether a reasonable adjustment could be made to her working arrangements.

A man who has depression has been at a particular workplace for two years. He has a good attendance and performance record. In recent weeks, however, he has become emotional and upset at work for no apparent reason. He has also been repeatedly late for work and has made some mistakes in his work. The sudden deterioration in the worker’s time-keeping and performance and the change in his behaviour at work should have alerted the employer to the possibility that these were connected to a disability.

Examples of reasonable adjustments
Making adjustments to premises
For example, widening a doorway, providing a ramp or moving furniture for a wheelchair user.
Providing information in accessible formats
This could include producing instructions and manuals in Braille or on audio tape, use of larger font on internal emails or a different coloured paper.
Altering the hours of working or training for a worker with a disability
This could include allowing a person with a disability to work flexible hours to enable him to have additional breaks to overcome fatigue arising from his disability, or permitting part-time working or different working hours to avoid the need to travel in the rush hour.
Assigning a different place of work or training, or arranging home working for a worker with a disability
For example, relocating an employee’s work station to an accessible place.
Acquiring or modifying equipment
An employer might have to provide special equipment (such as an adapted keyboard for someone with arthritis or a large screen for a worker with a visual impairment).
Providing supervision or other support
This could include providing a support worker, or arranging help from a trained colleague, for someone whose disability leads to uncertainty or lack of confidence in unfamiliar situations, such as a training course.
Modifying disciplinary or grievance procedure
For example, a woman with a learning disability is allowed to take a friend (who does not work with her) to act as an advocate at a meeting with her employer about a grievance. The employer also ensures that the meeting is conducted in such a way so that the woman is not patronised or disadvantaged.

Reasonableness of adjustments
An employer will not breach the duty to make adjustments unless it fails to make an adjustment which is “reasonable”. This is a fact-sensitive question. The law does not set out a prescribed list of reasonable adjustments. However, where a tribunal has to consider these issues it will take account of:

  1. The extent the substantial disadvantage was reasonably foreseeable;
  2. The proportionality of any steps taken;
  3. The costs and practicalities of such steps; and
  4. Nature of and size and administrative resources available to the employer.

Where an employee alleges a breach of the reasonable adjustments duty, it is important to establish at an early stage of proceedings what each party contends are the potential adjustments at issue. An employer should ask the employee to particularise every adjustment that they will rely on at the hearing. The employer should then seek to demonstrate, using expert or other evidence, that each suggested adjustment would probably not have worked or would have been impracticable. There is no objective justification defence available in respect of an employer’s failure to make reasonable adjustments. The proposed adjustments were either reasonable or they were not.

Conclusion
We hope you have enjoyed this publication! We would like to thank all our interviewees for their invaluable assistance and support with this initiative. If you are an employer reading this, we can offer you help with the following:

  • Making sure your employment policies and procedures are compliant with the Discrimination and Employment Laws in Jersey;
  • Advising you on reasonable adjustments you may need to consider based on your work force, clients, customers and others visiting your premises;
  • Advice on any disability-specific issue you may be encountering in your work place; and
  • Provide training to your managers and staff on the discrimination law generally and, more specifically, on the protected characteristic of disability.
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