Flexible working legislation should have learnt from the implementation of reasonable adjustments law
The 1995 Disability Discrimination Act introduced an economically transformative right for disabled people: the right to reasonable adjustments, which their employer must provide on knowing (or being reasonably expected to know) that an employee has or may have a disability. I, and very many other disabled workers, would not have had a three-decade career and counting without that one small paragraph. Such is the power of legislation.
The reasonable adjustments provision, now in the Equality Act 2010, remains one of the most substantially fair and balanced provisions in all employment and equalities law. It balances the needs of the employee with the resources of the employer, and crucially it acknowledges that both can change at any time. However, it is also one of the most widely misunderstood paragraphs in employment and equalities law. Let me be clear: the legislation is not broken. However, the understanding employers and policy makers have around it limits its impact. Ask disabled employees for their view on reasonable adjustments and you’re likely to get answers ranging from “I love my adjustments” to “adjustments, what adjustments? I’m still waiting”. Our research shows one in eight disabled employees wait over a year for their adjustments to be implemented after having them agreed.
This prompts savvy disabled employees to turn to what else is available in their legislative rights toolbox: the right to request flexible working under the Employment Rights Act 2025 (ERA). If a disabled person’s adjustments are about changing timings, location, or structure of how they work, the ERA offers a right to request flexible working from day one of employment, and with the added benefit (or relief) of not having to mention a disability at all. We often see the flexible working right being called upon when an adjustments request fails. But, in many cases, we are told an employee requested an adjustment and had it declined, but when making the same request as a flexible working request, the request was granted. All it took was three more months, increased irritation and tensions between the individual and the employer, while riding the waves of requests and declines, and the consequential implication that an internal adjustments process where you talk about your disability is probably not the way to go if you need a bit of help from your employer. It’s not the message that most employers intend to send to their employees.
Ultimately, employers need to get this right because reasonable adjustments in the Equality Act and flexible working requests have fundamentally different considerations for a business to make, and the consequences matter. Reasonableness in the Equality Act is based on the “here and now”, namely an individual’s barriers, and the employer’s available resources at the time of the request. Furthermore, reasonableness in the Equality Act is an ongoing duty, meaning employers must review the adjustments regularly, and they can be altered to suit the employer and the employee at any time.
In the ERA, however, a flexible working arrangement is more static and indefinite. Perhaps that’s why it’s so attractive to disabled employees to go down that route if they can. However, if your circumstances change, you’ll need to put in a new request, and no more than two requests per year are permitted (sorry, those with fluctuating conditions and carers with changing circumstances).
Organisations which run front line services cannot continue granting flexible working requests forever. There is ultimately a tipping point where saying yes to another request puts the delivery of the service at risk or puts undue pressure on others. That also means there is now limited scope for adjusted duties and job carving for disabled people and redeploying older workers. The reality is that flexibility is not sustainable forever. Reasonable adjustments law already taught us that.
Reasonable adjustments as an employee right and employer duty is not broken, but the Government must ensure the updating of the Equality and Human Rights Commission’s Code of Practice and enforcement of adjustments is a constant strategic priority for the Equality and Human Rights Commission. We do not need more legislation, but employers are craving deeper real-world practical guidance. At the moment, the flexible working right in the ERA has unfortunately followed what is not working for reasonableness in the Equality Act: a tightly worded piece of legislation, with little realistic guidance for those who have a duty to implement it. Ultimately, it’s the people who the right is for, employees, who will feel the consequences.
Angela is Director of Public Policy and Research at Business Disability Forum (BDF), which she joined in 2013. She leads BDF’s Government policy and research strategy and chairs policy engagement forums, including the Disability Data Monitoring Working Group, the Lived Experience Forum, and the Work and Health Policy Forum.
