In this article, Senior HR Consultant, Claire McGuinness, discusses disability in the workplace and how to prevent disability discrimination from taking place.
Under the Equality Act 2010, it is unlawful to discriminate against a worker on account of a physical or mental disability or to fail to make reasonable adjustments to accommodate a worker with a disability. Considering that one in five people in the UK report having a disability, employees need to be aware of their legal protections and employers need to ensure they fulfil their duties.
It is not always necessary to categorise an impairment as physical or mental. It is the effect of the impairment, not its cause, which is material in deciding whether or not someone is disabled for the purposes of the Act. A person will be classified as disabled if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day to day activities.
The act replaces the concept of disability-related discrimination with a new protection from discrimination arising from disability. This means that an employer discriminates against a disabled person if it treats them less favourably than it would another person because of something arising from, or in consequence of, their disability. Given the extensive nature of the protections against disability discrimination, employers need to be aware of the responsibilities they have towards their disabled employees and honour them. This can vary from absence from work because of an illness, problems with movement, or difficulties with reading, writing, talking, listening or understanding.
The employer will have a defence if it can show that the unfavourable treatment was a proportionate means of achieving a legitimate aim or if the employer did not know, or could not reasonably have been expected to know, that the employee had a disability.
Seccombe V Reed – The Tribunal concluded that the claimant was not disabled and that the employer did not have actual or constructive knowledge of a disability. The EAT held that the Claimant was dismissed on performance grounds. Prior to his employment he had suffered two bouts of ill health related to anxiety and depression. Neither was long term. During his employment he suffered a traumatic event which led to a breakdown. He resumed work following a short absence and his managers assumed the issue was resolved. On his health questionnaire he had not disclosed any mental health impairment. His assertions on disability were not supported by medical evidence. The EAT held that there was no perversity in the tribunal’s decision. The Claimant was not disabled on the evidence. He failed to demonstrate that his mental impairment was long-term.
The tribunal was entitled to conclude that the employer did not know of any disability.
This judgment provides a useful summary of the law on definition and knowledge. The long-term requirement relates to the effect of the impairment not the impairment itself and is judged at the time of the alleged discrimination, a prediction must be made as to long-term if it is not obvious. What a person says about their impairment is important if there is no medical evidence in support. The definition must be met at the time of the alleged discrimination. The correct approach to knowledge is that the role of experts is to provide evidence, not to determine whether the definition is met.
DWP have launched a new online service (early test version) which will give employers the tools they need to empower and encourage disabled employees and those with health conditions. Businesses and disability groups are invited to test and shape new service which supports employers to employ more diverse and inclusive workforces. Thousands of businesses across the UK will benefit from a new £6.4 million online service to help employers better support disabled people and those with health conditions in the workplace.
The early test version of the Support with Employee Health & Disability service https://www.support-with-employee-health-and-disability.dwp.gov.uk/support-with-employee-health-and-disability provides essential information about supporting and managing employees with disabilities or health conditions at work. Any employer can access the service, which provides free advice on how to manage staff who may be in or out of work with a disability or long-term health condition. The service is aimed at smaller businesses, many of which do not have access to an occupational health service and will help them to build more diverse and inclusive workforces.
The new service also covers potential changes an employer could make to help them return to and stay in work. Once fully developed, the service will also help employers understand their legal obligations, including how to make adjustments for disabled people and those with health conditions.
If you have employees on long term sick and are unsure about making reasonable adjustments to support their return to work, or employees in work with a long-term health condition, please do not hesitate to get in contact with our expert team of consultants who can help guide you in the right direction and help prevent disability discrimination.
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