- Disability in the workplace: what employers need to know

The most recent statistics show that out of all the working-age people with a disability in the UK, almost half are employed (NHS Choices, 2015), however campaigners say this should be higher and that employers are not currently doing enough to help disabled people feel more welcome and secure in the workplace.

So what does this mean for you?

As an employer, do you know what is required from you in terms of making your organisation more suitable for disabled employees? And where does it begin; when the person starts working for you or is it as early as the interview stage? We’ve got all the answers you need to make sure that you are doing everything required of you as an employer.

Know the basics; what is a disability?

Disability is defined in different ways for different purposes. Under the UK Equality Act 2010 the definition is as follows:

‘A person 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’.

In this case, ‘long-term’ means that the condition has lasted (or is expected to last) for 12 months or longer. People diagnosed with cancer, multiple sclerosis or HIV / AIDS are covered under the Act from the date of diagnosis, whether or not the illness has any impact on their life as it is at that time. Other illness covered under the Act include:

• Chronic fatigue syndrome
• Schizophrenia
• Rheumatoid arthritis
• Diabetes
• Epilepsy
• Dyslexia
• Severe nut allergies
• Eczema
• Depression
• Some cases of obesity.

If someone suffers with a mental health illness, they do not need that illness to be clinically well recognised to be covered under the Act; it is down to whether or not it is clear to see that the symptoms of the illness are impacting on that person’s life. There is also no need for an employee to be registered as disabled to qualify for protection.

The legal bit

Discriminating against people because of their disability has been illegal since 1995 when the Disability Discrimination Act was introduced. This is now contained within the Equality Act 2010, which outlines and prohibits seven different types of disability discrimination:

• Direct discrimination
– Purposely choosing not to favour someone because of their disability, for example not promoting them because of it

• Indirect discrimination
– Putting set provisions in place that indirectly put certain individuals at a disadvantage, without having a legitimate and justifiable reason to enforce such rules. For example enforcing a set time to arrive at work which may not be possible due to transport issues for people with certain disabilities, unless the employer can prove it is a necessary requirement for the employee to arrive at that set time

• Discrimination arising from disability
– Treating an individual less favourably because of something directly connected to their disability, without a legitimate and justifiable reason. For example dismissing a dyslexia sufferer due to them making spelling mistakes

• Associative discrimination
– Treating someone less favourably because they are associated with someone with a disability. For example discriminating against a parent because their child is disabled and they sometimes have to leave work to deal with any issues that arise

• Perceptive discrimination
– Treating someone less favourably because it is perceived they have a disability, whether they actually do or not. For example choosing not to hire someone because they walk with a bad limp

• Victimisation
– Treating someone less favourably because they have made or supported a complaint or raised a grievance under the Equality Act 2010. This can also cover post-employment; for example if the employer refuses to give a reference to someone who made a complaint under the Act

• Harassment
– The Act defines harassment as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’. However, this only relates to harassment from individuals inside the company; there is no longer any specific legislation for making employers liable for harassment that comes from a third party (a customer for example). There are ways in which an employer can still be held liable though; for example if there was a breach of contract, any direct discrimination or failing to adhere to the Protection from Harassment Act 1997
– Employers should continuously take all steps possible to protect employees from any form of harassment. For advice on how best to do this, get in touch with us today.

What should employers be doing?

It is the duty of employers to make sure that reasonable adjustments are made to support disabled individuals. This does not just cover current employees, but also any job applicants that are being interviewed for a position.

The Equality Act 2010 states that employers have a positive and proactive duty to take steps, as far as reasonable, to remove, reduce or prevent any obstacles that a disabled employee or job applicant may face, in order to give them the same access to everything that is involved in getting and doing a job in the same way as a non-disabled person. Employers only have to make adjustments where they are aware, or should be reasonably aware, that someone has a disability. For example it would be perceived as common practice for an employer to be reasonably aware that a person in a wheelchair would require a ramp as oppose to stairs, however someone suffering with a mental illness or dyslexia for example, would be expected to make the employer aware of that themselves, so that the reasonable adjustments can then be made.

If an employee or job applicant believes they have been unfairly discriminated against, they can bring a claim against the employer in the Employment Tribunal, which may result in the employer having to pay compensation in addition to having to still having to make the reasonable adjustments, if the court finds them liable. The average disability discrimination compensation award was £21,729 in 2015/16. We at Su Allen HR can advise you on what are considered to be ‘reasonable’ adjustments and whether or not you need to make any.

Need to know more?

For more information and to find out what positive actions your company can be taking to ensure a safe and secure working environment for all your employees, contact us on 01582 883299 or email su@suallen.co.uk.