by Cindy McAlister
Solicitor, Director of Compliance, EmployAbility
What is it?
In November the government announced that its Adjustment Planner will be rolled out to all universities and higher education colleges across the UK for the next academic year. Following a trial, the government says that students using the Planner ‘are more confident entering employment’, and hopes that it will ‘help ease their transition into work’.
The Planner is a voluntary tool, put at students’ disposal to ease what is very often a difficult conversation with a first employer, fraught with fears of discrimination, imposter syndrome. A conversation which, as a result, may never happen. The idea behind the Planner is that it will make the whole process more manageable. So far, so good.
What it isn’t
The Planner is a one of many ways to discuss adjustments – a blunt instrument – but one which may be useful for engaging employers who are unaware of or unsure about their duties under the Equality Act. It can also be a starting point for a conversation with more sophisticated employers.
It doesn’t change individuals’ rights under section 60 of the Equality Act, which prohibits an employer from asking health or disability-related questions during the recruitment process. It doesn’t alter the protections afforded by the UK Data Protection Act, which prevents employers from insisting upon seeing sensitive health data, and where an employee does share such information, from holding more than is absolutely necessary to achieve the purpose for which the data is collected.
The Equality and Human Rights Commission confirms that in order to comply with section 60, questions about adjustments during recruitment are restricted to finding out ‘if reasonable adjustments are needed to enable a disabled job applicant to take part in any assessment,’ and ‘questions about reasonable adjustments needed for the job itself should not be asked until after the job offer has been made (unless these questions relate to a function that is intrinsic to the job’. The Planner, which contains direct questions both about a person’s disability and the adjustments required for work, goes beyond both of these, and is therefore not appropriate for recruitment. Employers would breach section 60 and the UK GDPR by insisting on a student sharing a Planner before a job offer has been made, which is presumably why it doesn’t include any reference to adjustments for recruitment.
The wording in the Planner’s introductory section is confusing. An employer reading that the Planner can be useful to help an applicant ‘prepare…for an interview by providing a structure…to have more confident conversations with potential employers about your working requirements, adjustments and in-work support’, could take this to mean that they are permitted to ask questions about the adjustments an applicant might need if successful. A student might assume that they are expected to have such conversations during recruitment. Neither is true. Generally, we advise students not to have conversations of this sort until they are made an offer: the legislative protections in place are there precisely because discussing workplace adjustments during recruitment increases the risk of discrimination, and reduces the chance of being hired, particularly for those with non-visible conditions. And, it exacerbates anxiety and stress for students.
A section 60 minefield?
Despite this, and notwithstanding the government explicitly describing it as voluntary, our expectation is that certain employers will ask student applicants requesting recruitment adjustments to share a Planner as a matter of course. Where that happens, many students will assume that they are required to do so, with the power imbalance feeding into this. We regularly see employers request detailed educational psychologists’ reports from students as a supposed prerequisite for providing adjustments during recruitment, unaware of the legal limitations imposed by section 60. The introduction of the Planner is likely to make this practice more difficult to counter, undermining the protections which section 60 exists to provide.
Risk: wrong assumptions for recruitment adjustments
Where students do share the planner, which contains information about the adjustments provided at university for exams, many employers will assume that the same adjustments should be provided for tests, interviews or assessments during recruitment. Whilst this may be true for some, and particularly those with physical and sensory impairments, making this assumption across the board is wrong. Acting upon it is potentially discriminatory. It is particularly likely to have adverse consequences when applied to neurodivergent applicants or those with other non-visible conditions. University exams are qualitatively different from the selection tests and exercises usually encountered during recruitment. Adjustments which are appropriate and effective for the former may have little or no impact on removing disability-related disadvantages inherent in the latter. And yet we know from experience that employers often assume that identical adjustments will suffice. For example, time and again neurodivergent students describe certain recruitment assessments as being markedly similar to the tests used to diagnose their conditions, making it next to impossible for them to succeed. No amount of extra time will provide a level playing field where this is the case.
A key part of EmployAbility’s work involves educating employers about the importance of providing adjustments based on an individual’s needs, rather than their own assumptions about what should be adequate for particular conditions, or the adjustments provided in education. The roll out of the Planner risks embedding these wrong assumptions.
What about the workplace?
For workplace adjustments too, the Planner presents a number of issues which will need to be understood and carefully navigated by universities, students and employers.
Whilst the adjustments for work can be the same as those required in education, there may equally be limited or no correlation. The workplace can present entirely novel challenges, many of which students are unaware of beforehand. What’s needed will depend on a range of factors, depending on the nature and structure of the role and the impact of an individual’s disability. It is a complex and expert assessment of these factors and their interplay which forms the basis for effective, adapted adjustments. Employers should always consider whether a full assessment is required: they should not assume that information contained in a Planner will be sufficient to discharge their legal duty to understand an employee’s needs and provide appropriate workplace adjustments.
There is a risk too that graduates who didn’t receive adjustments in education, or don’t provide their employer with evidence of these using the Planner when they begin work, will believe that they can’t request them further down the line. Adjustment needs change: they may be different for different roles, the impact of a condition can change over time, and some people are initially fearful of raising the issue but later change their mind: and ongoing monitoring of the effectiveness of adjustments is a key element of best practice, as is reassessing needs if an employee changes roles. Therefore employers must make it explicit as part of their onboarding process and ongoing internal communications, that not having previously used the Planner in no way impacts an employee’s right to seek adjustments at a later date, and that the adjustments set out in the Planner can be reviewed and changed if required.
Getting it right: processes, culture and education
For some, the Planner may simplify the process of accessing workplace adjustments; for others the effect may be the opposite. It may be a useful way of opening a dialogue with an employer: but this paper-based information-gathering exercise should not be instead of a visible, solution-focused adjustments process supported by training for students, university careers advisors, and employers. Universities should be prepared to support students to understand their rights during recruitment, and the limitations of the Planner for when they are in work. Employers should continue taking steps towards building visible, inclusive processes to provide adjustments, and building inclusive cultures. The Planner can be part of that, but it cannot replace it.