Disability: employer responsibility

If you weren’t already, it’s important to be aware of your legal obligations towards disabled employees, as failing to do so can cause challenges for your organisation.  

It may seem surprising, but simple steps can often prevent discrimination from occurring and can go a long way in making individuals with disabilities feel valued and cared for.  

Understanding employer responsibilities when it comes to disabilities

Legally, a person has a disability if they have a physical, or mental, impairment that has:  

• A substantial adverse effect on their ability to undertake day-to-day activities. 

• Affects the individual over the long-term, i.e. 12 months at minimum. 

For example, an employee who requires the use of a wheelchair permanently due to a spinal injury would be considered disabled. 

It’s important to remember that certain conditions are not classed as a disability for the purposes of equality legislation. These include: 

• Alcohol addiction. 

• Tobacco addiction.

• Hay fever. 

• Any other ailment which resolves with time, medication, or is not permanent. 

It should also be noted that stress alone is not counted as a disability, however, it can lead to other conditions that can be counted as such, such as depression or anxiety. However, other impairments that are a consequence of an exempt condition may be classed as a disability. These include conditions such as liver disease, even if it is caused by chronic alcoholism. 

It is critical to understand that you may not always be aware that you have a disabled individual in your employ. 

On the outside, an individual may appear to be your top performing, most consistent employee, but this does not mean that they do not have a disability. For example, it can be difficult to detect mental illness in your staff, especially if the employee has not disclosed their condition to you. 

You should be mindful of any signs that an employee does have an underlying problem that they have not disclosed to you. To give another example, if an employee suddenly starts turning up to work late, do not assume that they are deliberately breaking the rules. Their lateness may be related to a disability that you may not be aware of. 

Disability is a Protected Characteristic in the UK 

The Equality Act 2010 provides the following Protected Characteristics list: 

• Age 

• Disability 

• Gender reassignment 

• Marriage and civil partnership 

• Pregnancy and maternity 

• Race 

• Religion or belief 

• Sex 

• Sexual orientation 

If you are found to have intentionally or unintentionally discriminated against a disabled individual, you may be subject to fines, employment tribunals, and even, in the worst case, prosecution.  

Introducing discrimination policies

The Equality Act 2010 provides employees with protection from unlawful discrimination on the grounds of disability. If an employee is successfully able to claim discrimination against you, you could be liable for an unlimited fine from the employment tribunal. 

To prevent this, you must ensure that your company has an equal opportunities policy or an equality and diversity policy in place. 

Whatever policy you employ, it should function to comprehensively lay out all steps that your organisation takes to ensure equal opportunities for your employees, outlining the consequences for any individual found to contravene the rules and regulations it sets out. Understand that your policy should be clear, well-drafted and easily accessible for all employees. 

Recruiting a disabled individual

Disability discrimination can happen before employment begins; therefore, it is critical to be mindful of this before and during the recruitment process. 

1. You must maintain fair recruitment procedures to ensure equal opportunities to all candidates.  
2. Unless you 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 terms like ‘fit youngster’ or ‘strong male’. 
3. Conduct all interviews with more than one person to avoid individual bias affecting the final decision.  
4. Job applicants should not be asked about their health, disability, or absence record. It is unlawful to do this, except in certain specific employment areas where these types of questions are permitted. 
5. Before all interviews, ask the candidate whether they require any adjustments to the recruitment process. This is to remove any barriers they might face because of their disability. 
6. Finally, selection should be based on objective factors relevant to the role.  

The duty to make reasonable adjustments

If a disability is identified, there is a duty upon you to make reasonable adjustments to the person’s work, or the workplace itself to accommodate the identified disability. The aim in your ameliorative action is to limit any disadvantage caused by their condition. 

Below, we will get a little more technical to explain how best to approach this process: 

• The duty to make reasonable adjustments 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. It does not matter whether they had the disability before they started work or whether it began a few years down the line. 

• Making reasonable adjustments may mean making physical changes to your building. It could also mean changing the way work is undertaken or installing new equipment. 

For example, you could lower shelf levels or door handles so a person in a wheelchair can reach them. Or you could allow a worker to start her working day later because she takes medication that makes her drowsy in the mornings. 

The adjustment does not necessarily need to cost the company money. It may be that you can achieve the change 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, you should evaluate: 

• How effective the change will be 

• How difficult it is to do it 

• How long it will take 

• What the costs will be 

The average cost of a reasonable adjustment varies depending on reports and publications. Currently, the estimate lies somewhere between £30 to £180 per individual. 

There are no exceptions for small employers or SMEs, as the same duty still applies. 

However, what may be reasonable for one employer may not be reasonable for another. Particularly if they do not have as many resources to complete the adjustment. 

If you face a claim for failing to make reasonable adjustments, you may have a defence if you were not aware that the employee was disabled. In this case, you would need to demonstrate that there was no reasonable way you could have known, or been aware, that the employee was disabled. This can be difficult to establish, so be prepared to investigate the situation more thoroughly, especially if the behaviour of any employee suggests an underlying condition or disability.

Long-term disability: employer responsibility 

Sometimes disabled employees may have to take prolonged periods of time away from work. These could be in one block, or a series of shorter absences. 

Firstly, you should explore all adjustments that could be made to help them return to work. If it seems unlikely, you may need to take another approach. You can seek medical evidence to see whether the employee is fit for work for the near future. 

Alternatively, you could seek further input from Occupational Health if you have access to it. 

If the employee cannot return to work soon, you can consider dismissing them on the grounds of capability. However, you must follow a fair procedure and clearly demonstrate that you have considered all other options first. 

Expert support

If you need further assistance with a disabled employee, or, if you have an HR or employment law query, speak to a Croner expert today on 0808 501 6651.