DISABILITY DISCRIMINATION

DISABILITY DISCRIMINATION

Further resources:

2 minute guide to handling allegations

Dignity at Work Policy and Procedure

Equal Opportunities Statement

An employee is disabled if they have 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.

The definition above covers certain early stage conditions where the employee may not yet be suffering from an adverse ability to carry out normal activities, for example certain types of cancer. Mental impairment, which can include depression, also falls into the category of a ‘disability’.

A ‘long term’ adverse effect is generally regarded as being 12 months or more. ‘normal day to day activities’ are not defined in legislation, but should be regarded as including walking, talking, communicating, sitting, standing, lifting, seeing and the ability to perceive danger etc. Beware though, this is not a definitive list, and the first consideration when dealing with an employment issue arising via a possible disability is to establish whether the employee’s particular disability is likely to come within the definition of a ‘qualifying disability’.

Employment law considerations are many, varied and complex, but for the purposes of our summary here, employers must:

· NOT discriminate on the grounds of an employee’s disability either in recruitment practices or in the course of an employee’s employment, or in the ending of that employment

· NEVER dismiss an employee for reasons relating to their disability without first considering REASONABLE ADJUSTMENTS, without full current medical evidence and without considering fully, and in full consultation with the employee, the alternatives to dismissal.

The definition of ‘reasonable adjustments’ varies with respect to the size and resources available to the employer, but could include the provision of special equipment or adjustments to premises or equipment to enable the disabled person to safely use it. Adjustments could also include a redesign of the job role, or a change in the expectations of the employee, for example in their expected absence rate, or their expected work performance which may in some cases be necessarily lower than a comparable employee without that disability.

Typical employment law pitfalls

Inappropriate wording on job vacancies may give the impression of excluding disabled workers and may attract speculative compensation claims. Employers often assume that a disability will render an employee unsuitable, without first taking proper advice from the employee and their medical advisors, who will be in a better place to make objective judgements.

Employers often fail to consider reasonable adjustments and to obtain up to date medical information when contemplating dismissing a disabled employee. The absence of full & transparent consultation with the employee will also often render the dismissal unfair.

Employers who dismiss a disabled employee on the basis of their attendance record will be found to have discriminated against that employee if the poor attendance relates to their disability – disability related absence should be discounted for the purposes of managing attendance.

The normal 102 weeks of employment period (relating to service an employee needs to bring about an employment tribunal claim) does not apply to unlawful discrimination, so employees with less than 2 years’ service could take their employer to tribunal for breach and indeed job applicants who feel they have been excluded because of their disability could also take an employer to tribunal. Unlike standard dismissal cases, unlawful discrimination carries no upper limit on compensation that may be awarded.

As well as being liable for your own actions, there are circumstances in which you as the employer will be liable for the acts of others. Under the wider provisions of the legislation, Employees who discriminate during the course of their employment, will be personally liable even if the employer has a defence.

Help and support

We require customers to notify us in advance of contemplating any action that may affect the employment status of an employee who may reasonably be believed to be disabled. We can normally advise on processes to follow, or refer to occupational health or other specialist disability at work advisors. If a discrimination-related dispute is apparent please contact us straight away.

Our 2 minute guides are designed to map out HR processes simply, providing links to the documents you are likely to need. If in doubt please contact us for assistance.

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