How do you avoid discriminating against disabled employees? Sam Murray-Hinde of law firm Howard Kennedy lays down the law
The Equality Act 2010 protects disabled employees from discrimination in the workplace.
The duty to make reasonable adjustments is the most common form of protection and, where that duty arises, an employer must effectively treat the disabled employee more favourably than others in an attempt to reduce or remove the disadvantage faced.
It is not always apparent when someone has a disability, as this could be 'invisible', such as a mental health condition. However, once the employer knows, or ought reasonably to know that an individual is disabled and, crucially, is likely to be placed at a substantial disadvantage as a result of that disability, the duty is engaged.
Pre-employment
Employers are prohibited from asking applicants questions about health, other than for prescribed reasons; for example, an operator can ask someone if they are fit enough to drive a PCV, or do manual handling, provided this is a function intrinsic to the role.
Therefore, reasonable adjustments need only be considered where a disabled candidate requests these, or the employer becomes aware of a substantial disadvantage due to disability. Even where voluntary disclosure of a disability is made, employers should be careful as to what further questions are asked.
Only after a job offer is made can an employer ask about health, and what reasonable adjustments may be needed to allow the candidate to do the job, to include completing any induction period and training and development.
During employment
Operators will have formal and informal policies and procedures that apply to all employees, but which may place disabled employees at a substantial disadvantage by comparison. This can amount to indirect discrimination.
Some attendance procedures trigger disciplinary action after a specified number of absences within a rolling period. A disabled employee may well be placed at a substantial disadvantage as a result, due to the likelihood of them being absent more often than a non-disabled employee.
Caution should be exercised when modifying internal procedures for disabled employees as a reasonable adjustment, as this will set a precedent. In such cases, an operator should first consider whether it can objectively justify the procedure.
For example, the consistent application of attendance procedures can be vital to operators where punctuality is paramount to service delivery. Therefore, they might be able to show that the procedure is a proportionate means of achieving a legitimate aim.
A lot of disability-related absences may be avoided or better accommodated by taking steps at the outset to identify and implement reasonable adjustments. For periods of long-term disability-related absence, before considering dismissal an employer needs to go further than it would with a non-disabled employee and consider adjustments to the role or, as a last resort, suitable alternative employment with or without a competitive interview.
Best practice
Rather than focusing too heavily on whether the definition of disability is met and whether additional legal obligations are engaged, the focus should be on the needs of the individual. Ultimately this will benefit the business in terms of productivity.
Where a substantial disadvantage is identified, a proper assessment should be conducted in consultation with the employee to identify any adjustments that could be made to reduce or remove that disadvantage. For the most part, adjustments involve little cost and are therefore likely to be considered reasonable.
