Until recently employment disability provisions were dealt with by the Disability Discrimination Act. The Act and the provisions contained are now incorporated into the Equality Act 2010. The Equality Act took effect from 1st October 2010.
To be covered by the Equality Act 2010, and the various protections it provides a disabled person with, then an employee would need to meet the definition of disability in the Act. It is defined as a person who has a physical or mental impairment which has a substantial and long term adverse effect on their ability to perform normal day to day activities.
Substantial means more than minor or trivial, long term means that the condition has lasted or is likely to last for at 12 months, and normal day to day activities will include things such as walking for short distances, going shopping and /or washing.
Once an employee satisfies this definition they are entitled to protections at work as outlined under the Equality Act 2010. These include the following:
Duties to make reasonable adjustments
It will be a question of fact as to whether an adjustment is reasonable, but generally speaking it could be expected to include the following:
- Providing equipment that will help the employee to undertake their role. This can include physical features such as exits and access to a building, fixtures, fittings, furniture, materials, and equipment and so on.
- It can also include auxiliary aides which is something that provides support or assistance to a disabled person such as an adapted keyboard or text or speech software. It may, in more serious cases, include auxiliary services such as using a sign language interpreter or support worker for a disabled worker.
When deciding what adjustments are reasonable an employer should undertake a review in consultation with the employee and should consider the following:
- the cost of the adjustment and the resource available to the employer;
- how whether the adjustment will be effective in helping the person to undertake their job, whether it is practicable to make the adjustment;
- whether there are any schemes available to assist with funding the adjustment;
Some other examples of reasonable adjustments would be office design to ensure that it is disability friendly, brail or large print for reading materials and documents, intercoms, ramps and/or additional access /exit to the building.
The duty to make a reasonable adjustment arises once an employer has knowledge or could reasonably expect to have knowledge of the disability that the employee is suffering from. In all cases that employee should ensure that their employers are kept fully updated in relation to their condition.
An employer is only exempt from the duty to make adjustments if they can demonstrate the following :
- cannot reasonably expected to know that the disabled person had a disability;
- does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
- could not reasonably expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with workers who are not disabled;
- any adjustments would be so costly, when compared to the size and resources of the business, that the employer cannot reasonably be expected to make those adjustments.
It is not enough for an employer to say that they simply did not know about the employee’s disability. They will have to show that they should not reasonably have been expected to know. For example, there are reasonable steps that an employer would be expected to take to establish whether an individual is disabled or not. Employers should ensure that where information about a disabled person may come through different channels, there is a means for bringing that information together to make it easier for the employer to understand their duties under the Act.
Other adjustments which an employer may consider are altering a disabled person’s hours of work or training, transferring them to a fill an existing vacancy, allowing them to be absent for rehabilitation assessment or treatment, allowing them a period of disability leave, or redefining disability or grievance procedures.
It is important to understand that if a disabled person is no longer capable of carrying out their role then there is an obligation to consider transferring them into a new role without the need to be interviewed alongside other employees. They should effectively be fast tracked with the possibility of training if that is required.
Procedures, records & training
In any event it is important that the employer ensures that they have a proper disability discrimination procedure in place and that they carry out a proper assessment of the employee to ensure firstly whether they are disabled and secondly what adjustments may reasonably be made.
The employee’s involvement should be sought throughout and a record kept as consultations are undertaken. It is important to keep a clear channel of communications and ensure that both sides are as transparent as possible.
Employers should also ensure that staff are adequately trained to deal with any disability issues. An employer will ultimately be vicariously liable for the act of their employees, however in the case of disability discrimination fellow employees can be held personally accountable for any claims made for disability discrimination.
Banana skins for employers
Employers should also bear in mind that under the Equality Act 2010 they need to be very careful with employment health questionnaires. They should avoid asking about the health of the applicant before offering work. If in doubt, the employer should review Section 60 of the Equality Act 2010 which covers when pre-employment health questions can and cannot be asked.
The disability discrimination and harassment protection under the Equality Act 2010 apply to a range of workers, including full time employees, part-time employees, agency and contract workers, job applicants, and partners. It applies to people who are classed as employees as well as those who are classed as workers under the Employment Rights Act 1996.
An employee or job applicant who considers they may have been discriminated against can submit questions to determine whether they have a claim. The employers then have a duty to answer these questions. These procedures are set out in Section 138 of the Equality Act 2010. If the employer fails to answer the questions then the tribunal can draw such inferences as they see fit.
Disability discrimination is becoming an increasingly contentious area, with more claims finding their way to the tribunal as a result of errors by employers when assessing an employee’s condition and thereafter dealing with it in accordance with the Equality Act 2010. It is important that employers seek specialist legal advice from the outset to ensure that they have a proper disability policy in place. An employer should review the ACAS code which provides guidance under the disability and grievance procedures.
This article helpfully contributed by Ben Jones, employment solicitor at Darlingtons, a law firm in London which offers a wide range of legal advice for business and individual clients, employers and employees. Ben can also be found on Darlingtons employment solicitors site.