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, can also fall 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. It also includes the activities normally undertaken in the employee's job, which of course varies from job to job - what is 'normal' for 1 job may not be in another.
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 a disabled 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 could be found to have discriminated against that employee if the poor attendance relates to their disability – disability related absence should normally be discounted for the purposes of managing attendance, although there is a point when the person's poor attendance might be shown to be detrimental to business to the extend that dismissal might be fair.
The normal 2 years of employment (an employee needs to bring a 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 their prospective 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 their own actions, there are circumstances in the employer will be liable for the discriminatory acts of their employees (even if the employer didn't know about the acts.) This is called vicarious liability and employer's will need to show they have taken adequate measures to prevent the discrimination occuring in order to avoid being liable. Measures would include having a Dignity at Work and Equal Opportunities policy and ensuring employees knew about it and understood it.
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.
myhrdept can provide a range of outsourced HR support including on-site presence if required. We believe we offer the best combination of quality and price available in the UK. Call us on 01628 820515 to discuss your requirements or email us and we’ll call you.