Disability - An Employer's Responsibilities

October is National Disability Awareness month. If you weren’t already, it’s important to be aware of your legal obligations towards disabled employees. Dealing with disability doesn’t have to cause issues for your company.

It may seem surprising, but simple and effective steps can often prevent discrimination from happening. Simple steps can also assist individuals with a disability in becoming valued and long-serving employees.

Employer responsibilities

Understanding 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. This 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 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
• Smoking
• Hay fever
• 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. However, other impairments that are a consequence of an exempt condition may be classed as a disability. These include condition such as liver disease that is caused by alcoholism.

An important thing to remember is that you may not know if you employ a disabled person.

On the outside, they may appear to be your top performing, most consistent employee, but this does not mean that they don’t have a disability. For example, it can be difficult to detect a mental illness, especially if the employee hasn’t disclosed their condition to you.

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

Introducing discrimination policies

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

To this end, the first thing to ensure is that your company has an equal opportunities policy or an equality and diversity policy in place.

The policy should set out all steps that your company will take to ensure equal opportunities for your employees. It should also outline the consequences for any individual found to be discriminating against a colleague. This should be clear, well-drafted and easily accessible for all employees.

Recruiting a disabled individual

Disability discrimination can happen before employment begins. Be mindful of this.

You must maintain fair recruitment procedures to ensure equal opportunities to all candidates. 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. Terms such as ‘fit youngster’ or ‘strong male’.

Conduct all interviews with more than one person to avoid individual bias affecting the final decision. Finally, 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’s generally unlawful to do this, except in certain specific employment areas where these types of questions are permitted.

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.

The duty to make reasonable adjustments

If a disability is identified, there’s a duty upon you to make reasonable adjustments to the person’s work, or the workplace itself. The intention is to avoid the disadvantage caused by their condition.

This is where we get a little technical.

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 doesn’t 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 done, 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 doesn’t 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 a few things:

• 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 particular reports and publications. Currently, the estimate lies somewhere between £30 to £180 per individual.

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

However, what may be reasonable for one employer may not be reasonable for another. Particularly if they don’t 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 weren’t aware that the employee was disabled. You would need to be able 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 absence and ending the employment of a disabled individual 

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 they’ll be able to do so, you may need to take another approach. You can seek medical evidence to see whether the employee is fit for work for the foreseeable future.

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

If the employee isn’t able to return to work in the foreseeable future, you can consider dismissing them on the grounds of capability. However, you must follow a fair procedure, and clearly demonstrate that you’ve 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 01455 858 132.