While a disabled employee can present numerous challenges for an employer, appropriately managing this situation can help to avoid discrimination claims, as well as maintaining and prolonging the employment relationship. Ben McCarthy, employment law writer at Croner-i, explores several points that employers should consider when managing employee disability.
The impact a disability can have on an employee, and their ability to conduct day-to-day duties within their role, must not be underestimated. The most important thing to remember is that the Equality Act 2010 provides protection from unlawful discrimination on the grounds of disability. If an employee is successfully able to claim that they have been discriminated against by their employer, the company could be liable to an unlimited fine from the employment tribunal. It is therefore vital that all employers are aware of the legal obligations towards disabled employees throughout the course of their employment.
What is a disability?
Legally, a person has a disability if they have a physical, or mental, impairment that has a substantial adverse effect on their ability to conduct normal day-to-day activities. The effect that a condition has on a person must also be long term, which generally means that it has lasted, or is expected to last, for at least 12 months. For example, an employee who requires the use of a wheelchair permanently due to a spinal injury would be considered to be disabled. It is significant to remember that certain conditions are not classed as a disability for the purposes of equality legislation. These include addiction to alcohol, smoking or any other substance (aside from medically prescribed substances), hay fever and tendency to set fires. It should also be noted that stress alone is not a disability; however it can lead to other conditions that are, such as depression or anxiety. Furthermore, other impairments that are a consequence of an exempt condition may be classed as a disability, such as liver disease that is caused by alcoholism.
Certain serious progressive conditions are considered to be disabilities from the point at which the individual has been diagnosed and begins to experience some symptoms. This holds even if the effects are not yet substantial, provided that it is likely that they will become substantial in the future.
Progressive conditions would include, for example, muscular dystrophy, Alzheimer’s disease and Parkinson’s disease.
Anyone diagnosed with cancer, HIV or multiple sclerosis is automatically classed as disabled under the Equality Act 2010 and so protected against discriminatory treatment, irrespective of how the condition is affecting them at that time, and irrespective of the future prognosis.
Employers may not always be aware that one of their employees is disabled. For example, it can be difficult to detect a mental illness, especially if the employee has not disclosed their condition. Employers therefore need to be mindful of any signs that an employee does have an underlying problem. To give another example, if an employee suddenly starts turning up to work late, employers should not just assume that the individual is deliberately breaking the rules; this may be related to a disability that they were not previously aware of.
What should employers consider when recruiting a disabled individual?
Disability discrimination can happen before employment begins and it is important that employers are mindful of this. Fair recruitment procedures must be maintained in order to ensure equal opportunities to all candidates. Unless the employer can demonstrate that an employee needs to be of a certain level of fitness or health to undertake a role, all job advertisements should avoid language which could relate to an impairment, such as “fit youngster” or “strong male”. All interviews should be conducted by more than one person to avoid individual bias affecting the final decision, and selection should be based on objective factors relevant to the role. Job applicants should also not be asked about their health, disability or absence record. It is generally unlawful to do this, except in certain specific employment areas where these types of questions are permitted. That said, before all interviews, employers should ask the candidate whether they require any adjustments to the recruitment process to remove barriers they may face because of their disability.
What is the duty to make reasonable adjustments?
Where a disability is identified, there is a duty placed upon the employer to make reasonable adjustments to the person’s work, or the workplace itself, in order to avoid the disadvantage caused by their condition. This duty is invoked where any provision, criterion, practice or physical feature of the premises places the disabled person at a substantial disadvantage in comparison with people who are not disabled. It applies at any point during the employment of the person, whether they had the disability before they started work or whether it begins a few years down the line. Making reasonable adjustments may mean making physical changes to a building, changing the way in which the work is done or installing new equipment that will help the disabled person do the job. For example, shelf levels or door handles may be lowered so a person in a wheelchair can reach them, or a worker could be allowed to start their working day later because they take medication that makes them drowsy in the mornings. The adjustment does not necessarily need to cost the company money; it may be that the desired change could be achieved by letting the employee work from home or even moving them to a different location in the workplace.
When considering whether an adjustment is reasonable, employers should carefully evaluate how effective the change will be, how difficult it is to do it, how long it will take and what the costs will be. The average cost of a reasonable adjustment varies depending on particular reports and publications, but the estimate lies somewhere between £30 and £180 per individual. There are no exceptions for small employers and, like large or medium-sized employers, the same duty still applies to them. However, what may be reasonable for one employer may not be reasonable for another if it does not have as many resources to complete the adjustment. If facing a claim for failing to make reasonable adjustments, employers may have a defence if they were not aware that the employee was disabled. In these situations, they would need to be able to demonstrate that, on the balance of all evidence available, there was no reasonable way they could have known, or been aware, that the employee was disabled. This can be difficult to establish and it is therefore highly advisable that all employers are prepared to investigate the situation more thoroughly if the behaviour of any employee suggests an underlying condition or disability.
Dealing with disability does not have to cause issues for a company. Simple and effective steps can often prevent discrimination from happening and assist individuals with a disability in becoming valued and long-serving employees. To this end, the best way to approach this is to maintain a clear equal opportunities policy. This policy can set out all steps that the company will take to ensure equal opportunities throughout the employment of individuals within it, and the consequences for any individual found to be discriminating against a colleague. It should be clear, well-drafted and easily accessible for all employees.
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Last reviewed 9 October 2019