We all know that discriminating against an individual because they have a disability is illegal. But what is a disability? What should you do to avoid discriminating against an individual who is disabled? What do you do if one of your employees becomes disabled? Put these questions together with the estimate that in today’s workforce nearly 20% of people of working age have a disability (CIPD, 2009) and it is clear that employers need to know the answers.
The Law:
Under the Disability Discrimination Act 1995 (DDA) it is unlawful for an employer (or prospective employer) to discriminate against a disabled person in employment or fail to provide any necessary reasonable adjustments for disabled employees and applicants.
Discrimination occurs where a disabled person is treated less favourably on the ground of his or her disability or for a reason relating to his or her disability. Employees are also protected from harassment and victimisation. This therefore covers; terms of employment, promotion, transfer, training, benefits, dismissal (including non renewal of a fixed term contract and constructive dismissal) as well as express dismissal.
For an employee to bring a case to tribunal for disability discrimination they must be covered by the DDA. A person has a disability if he/she has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (long-term is classed as lasting of likely to last for 12 months or to recur). Even if the reason that has led to the impairment itself is not covered under the DDA, the impairment itself still may be e.g. an employee suffering from alcohol addiction (excluded) who becomes depressed or suffers liver damage. An employer must do all that they can reasonably be expected to do to find out whether an employee has a disability and is likely to be placed at a substantial disadvantage within their employment.
To put this into perspective, in the year ended March 2009 there were 5,961 claims for disability discrimination taken to employment tribunal. There is no cap on the potential award an individual who successfully claims that they have been discriminated against because of disability can be awarded.
So what should you do?
Step 1: ascertain if your employee is covered under the DDA
An employee covered by the DDA may not be registered as disabled so this is not a form of proof. On the flip side a person who qualifies for disability living allowance may not be disabled under the DDA. It will be a tribunal that fundamentally decides if the disability is covered by the DDA. For this reason medical evidence will be important but will not be conclusive evidence. If a medical report it is to be relied upon by an employer, care should be taken in instructing an appropriately qualified expert. The expert should understand the term ‘disability’ in the context of the DDA. You are advised to provide relevant extracts from the DDA and guidance. The report should outline the effects on day to day activities and discount the effect of any medication. Prognosis and advice on work activities that the employee may be capable of carrying out should also be included in the report.
Step 2: make reasonable adjustments
You have a duty to make reasonable adjustments to working conditions or the working environment where the employee is at a substantial disadvantage compared to persons not disabled. It is up to the employer to take these reasonable steps.
A tribunal cannot find an employer at fault without first addressing what, if any reasonable adjustments arose under the Act. This may include things like allocating work to another person, altering hours of work, assigning to a different place of work, acquiring or modifying equipment. It is wise to consult with your employee about what reasonable adjustments they think should be made or adjustments to facilitate a return to work. There is no general duty to make adjustments in advance. The duty arises to a particular disabled person as and when the occasion arises. When considering what are reasonable adjustments, ask the following:
• how effective will an adjustment be?
• will the adjustment significantly reduce the disadvantage?
• is it practical?
• will it cause much disruption?
• will it help other people in the workplace?
• is it affordable?
Step 3: monitor the situation
Once you have made reasonable adjustments you should regularly review these and how the employee is getting on. As an employer you are also liable to acts of discrimination committed by your employees in the course of employment unless you can prove you took steps reasonably practicable to prevent the employee discriminating in that way.
What to do if you can’t make reasonable adjustments?
If after careful consideration, no reasonable adjustments can be made and medical evidence confirms an employee is not fit to the job at hand then you may reach a situation where redeployment is appropriate or a dismissal on the grounds of capability arises. You will almost certainly want to talk to us first.
Our top tips summary:
• Follow good recruitment practice to avoid claims before the onset of employment
• Audit existing policies and practices
• Make sure managers and employees know their responsibilities
• Listen to your disabled employees to make sure you know about their needs
• Make reasonable adjustments
• Invoke the grievance policy to try and address potential claims before they go to tribunal
N.B Employment law is constantly changing and whilst the above guidance is currently up to date it is subject to change in the near future. Please read on for future developments to the DDA legislation in our article on the forthcoming Equality Bill.
