The duty is active, not passive
Most employment law asks you not to do something. This one asks you to do something.
Where a disabled person is put at a substantial disadvantage by the way you work, your premises, or something you provide, you have to take such steps as are reasonable to remove that disadvantage.
You cannot wait to be asked. If you could reasonably be expected to know that someone is disabled and disadvantaged, the duty is already running.
If you have a nagging sense that someone is struggling with something health related, have the conversation. Not knowing is not a defence if you should have known.
Disability is broader than most owners think
The legal definition is a physical or mental impairment with a substantial and long-term adverse effect on the ability to carry out normal day to day activities. Long-term generally means twelve months or more, or likely to be.
That takes in a great deal that owners do not picture when they hear the word disability. Long-term depression and anxiety. Diabetes. Chronic pain. Dyslexia and ADHD. Long covid. Menopause symptoms in some cases.
Some conditions, including cancer, HIV and multiple sclerosis, count from the point of diagnosis regardless of effect.
The person does not have to use the word disability, and often will not. They may just tell you they are struggling.
What reasonable actually means
Reasonable is judged against your size and your resources. A business of eight is not held to the standard of a business of eight thousand.
But reasonable is not the same as convenient, and cost alone is rarely a complete answer, particularly where the cost is small.
The adjustments that come up most often are unglamorous. A change to hours or start time. A phased return. Time off for appointments treated separately from ordinary sickness absence. A different chair, a screen, or software. Removing one part of a role. Moving someone to a different role where one exists.
Access to Work can fund some of this, which people frequently do not know.
Ask the person what would help. It sounds obvious and it is skipped constantly. They usually know, and asking is itself evidence you took the duty seriously.
Where it goes wrong
Waiting for a formal request. The duty does not depend on someone filling in a form.
Getting occupational health advice and then quietly ignoring the recommendations without explaining why. If you are not going to follow a recommendation, record the reason.
Treating disability-related absence exactly like any other absence in a capability process. Adjusting the trigger points is one of the most common reasonable adjustments there is.
Deciding something is unreasonable without ever costing it or trying it.
And the one I see most: doing several helpful things informally over two years, none of them written down, then having no evidence of any of it when it matters.
You are still allowed to manage
This is the part owners most need to hear. Making adjustments does not mean the person becomes unmanageable, and it does not mean poor performance has to be tolerated indefinitely.
It means you make the adjustments first, give them a fair run, and then manage performance against what is realistic with those adjustments in place.
Dismissal is not off the table where someone genuinely cannot do the job even with adjustments. It just has to come after a proper process, with the adjustments actually tried, and the whole thing written down.
The businesses that get into trouble are not the ones that eventually made a hard decision. They are the ones that made it without doing any of that first.
Write down every adjustment you have made and when. That record is the difference between a defensible decision and an indefensible one.
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Frequently asked questions
They have not told me they are disabled. Does the duty apply?
It can. The duty applies where you knew, or could reasonably be expected to know, that someone is disabled and at a substantial disadvantage. Deliberately not asking is not a defence.
How much do I have to spend?
What is reasonable is judged against your size and resources, so a small business is not expected to match a large one. Cost alone is rarely a complete answer though, especially for low-cost adjustments. Access to Work can fund some of it.
Can I still dismiss someone who cannot do the job?
Yes, where they genuinely cannot do it even with reasonable adjustments in place, and you have followed a fair process. What you cannot do is skip the adjustments and go straight to the decision.
Does this apply to someone in their first week?
Yes. There is no qualifying period for discrimination claims, and there never has been. This is the single biggest risk with a new starter, not unfair dismissal.
Key takeaways
- Disability discrimination needs no length of service and awards are uncapped
- The duty is active. Waiting to be asked is not a defence
- Disability is far broader than most owners assume, and includes many mental health conditions
- Reasonable is judged against your size, but is not the same as convenient
- You can still manage performance and still dismiss, but only after adjustments have genuinely been tried and recorded
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