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As an employer, it pays to be aware of your responsibilities for disabled persons to avoid potential claims for disability discrimination and the financial penalties these bring.
Employment tribunal claims for disability discrimination can lead to the burden 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 lifecycle.
We outline the key principles and ways to reduce the risk of claims.
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.
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.
Disabled workers are protected from:
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.
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.
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.
The Equality Act puts considerable responsibility on employers. The following should help reduce the risk of claims:
For advice on disability in the workplace, either as an employer or employee, Pinney Talfourd are able to assist. We have an experienced and dedicated team of specialist employment lawyers based in offices across Essex and London.We have late night and Saturday appointments available and offer a free initial telephone consultation for all new employment law enquiries. You can book your free initial employment consultation using our online booking form or by calling your local office. This telephone appointment will allow you to explain the situation with an expert lawyer and discuss the best steps to minimise stress and delays.