Disability In The Workplace

Employment tribunal claims for disability discrimination can lead to the imposition of huge financial penalties for employers.  It therefore pays to be aware of your responsibilities to disabled persons under the Equality Act 2010.

From determining whether it is discriminatory to ask a job applicant about their health and abilities, through justifying a refusal to allow a disabled worker to opt out of shift working, to dismissing a disabled employee for high rates of disability related absence - consideration of the law relating to disability discrimination is needed at all stages of the employee life-cycle.

Gillian Reid, Employment Law Specialist at Ware & Kay Solicitors in York, Wetherby & Malton , outlines the key principles and ways to reduce the risk of claims.

What is a disability?

For the purposes of the Equality Act, a disability is a mental or physical impairment which has a substantial and long-term adverse impact on a person's ability to carry out day-to-day activities. When assessing the adverse impact of any impairment, the effects of medication or physical aids should be disregarded.

There is no need for a person to be registered as disabled in order for them to be classed as having a disability.  This is clear from case law, in which severe eczema, anxiety, chronic fatigue, and even obesity have all been found capable of amounting to a disability.

Even where a condition does not yet have an adverse impact, the Equality Act will offer protection.  For example, it will protect a worker with a progressive illness like HIV or cancer from the point at which they are diagnosed. Workers who have had a disability in the past are also protected.

How do I know if a person is disabled?

You need to be alert to signs of disability. You would be considered to know a worker is disabled if you should reasonably have known this from the facts. A statutory code, issued to support the Equality Act, requires employers to "do all they reasonably can be expected to do to find out if a worker has a disability."

In practice this could mean keeping an open mind as to the cause of a worker's sickness absence or deterioration in performance. You should discuss these confidentially with the worker and, if the worker agrees, seek advice from their GP, treating consultant or occupational health practitioners.

What are the different types of disability discrimination?

Disabled workers are protected from:

• Direct discrimination - treating an individual worse than someone in a similar situation because of their disability. For example, refusing to give a job to the best candidate because they have chronic fatigue syndrome and the employer made assumptions about the candidate's ability to do the job as a result of their condition.
• Indirect discrimination - the employer's usual practice or policy is applied equally to everyone, but disadvantages workers who share a particular worker's disability. For example, an employer requires all employees to work full-time, but a disabled employee with sickle cell anaemia struggles to work these hours.
• Discrimination arising from disability - treating a worker unfavourably because of something arising from a disability. For example, refusal to promote a worker due to poor verbal communication skills arising from the worker's Autism.
• Harassment - degrading or offensive treatment relating to someone's disability, such as name-calling. Although you could never argue this was justified, you might have a defence if you could show that you did all you could to prevent other employees from harassing their disabled colleague.
• Victimisation - subjecting a worker to less favourable treatment for making a complaint about the way they have been treated or because they have chosen to bring proceedings for disability discrimination.

With indirect discrimination and discrimination arising from disability, it is possible that even where discrimination can be shown to have occurred, you will not fall foul of the Equality Act if you can show that the discrimination was an appropriate and necessary means of achieving what the Act calls a 'legitimate aim'.  Examples of a legitimate aim include ensuring the health and welfare of employees and members of the public, enabling you to run an efficient service, ensuring the specific needs of the business are met, and enabling a business to operate at a profit.

'Appropriate and necessary' means that the discrimination which has taken place is the best and least discriminatory way of achieving the legitimate aim under consideration.  If there is a better and less discriminatory way in which the legitimate objective could be achieved, then it is unlikely that you would be able to rely on this defence.

What are reasonable adjustments?

An objective of the Equality Act is to get disabled people into work and to help them progress with their chosen career.  In order to help achieve this objective, the Act imposes an obligation on employers to make 'reasonable adjustments' to the way they run their business in order to avoid disabled people being put at a disadvantage to other people in the workplace. Indeed, the requirement to make reasonable adjustments may even allow an employer to treat disabled people more favourably than non-disabled people in order to level the playing field.

Examples of reasonable adjustments may include altering the duties, working hours or place of work of a disabled employee, or by providing them with specialist equipment to enable them to carry out certain functions.

You have to make reasonable adjustments to your working practices, your policies and procedures, and to your physical premises, where a disabled worker or job applicant might be put at a substantial disadvantage compared to someone without a disability.

How reasonable is reasonable?

An employment tribunal will look at a range of factors to determine what is reasonable. Factors include the size and resources of your company, the effectiveness of any adjustments, and the disruption to your business.

Managing risks

The Equality Act puts considerable responsibility on employers. The following should help reduce the risk of claims:

• put systems in place to find out relevant information about job applicants and staff, while respecting confidentiality and dignity;
• give managers appropriate training;
• do not make assumptions about the disabled person's condition or abilities;
• consult with the disabled person;
• when looking to objectively justify treatment of a disabled person, ensure that any alternative options have been explored and the decision will stand up to scrutiny;
• take the initiative and identify reasonable adjustments; and
• find out if there are any external sources of funding that might contribute to the costs of adjustments, such as the government's Access to Work grant.

Published: November 2017

Contact us

For advice on disability in the workplace or any other employment law issues, contact Gillian Reid at Ware & Kay on 01904 716000 or 01937 583210 or email Gillian.Reid@warekay.co.uk.

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