Disability Awareness – How Can Disability Rights Be Improved In The Workplace?
The main forms of disability discrimination that we come across are discrimination arising from disability and failure to make reasonable adjustments. For either of these claims to succeed it is necessary for the employer to have known or ought to have known that the worker was disabled. This is why it is important for workers suffering serious injuries or illnesses to make their employer aware of their condition and how it affects them.
The problem with disability discrimination law is that only illnesses such as cancer, multiple sclerosis or a diagnosis of HIV are automatically defined as being a disability under the Equality Act 2010 (the Act). This means that for all other illnesses or injuries, a test has to be applied in each and every case. A person is only disabled if they have a physical or mental impairment, that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
This test applies before the effects of treatment. This means that there are a lot of people, especially those whose condition is being controlled or improved by medication, who meet the test of disability but are not aware of it.
In addition, any person who has had a disability in the past is also protected by the Act. It is not uncommon for us to see clients who have no perception of themselves as being “disabled” but who meet the definition. Not surprisingly, their employer does not consider they are disabled under the Equality Act and this leads to unlawful discrimination under the Act.
Positive action: top tips for employers
- If an employer suspects that one of their workers or employees has a disability under the Act, they should meet to discuss these health issues.
- This might lead to obtaining an Occupational Health report to get a better understanding of their worker’s condition and to obtain recommendations about reasonable adjustments. At the end of the day it will be for the employer decide whether these recommendations are reasonable and can be accommodated.
- An adjustment does not have to be guaranteed to work, it will be reasonable as long as there is a prospect that it will enable a disabled employee to stay in work. Employers who take these steps are ensuring they are in a position to meet their obligations and to avoid potential Employment Tribunal claims. Enquiries for more health information should be carried out in a confidential way and workers and employees should be reassured that their personal information will be safeguarded and only shared, with their agreement, with managers that need to know.
- Awareness should extend to reviewing policies to ensure that, as far as possible, will not disadvantage disabled people. For instance, this might mean considering how disability related absence will be treated under sickness policies or ensuring that redundancy selection criteria are not detrimental or are adjusted to take account of disability. For example, if sickness is used as a criteria for redundancy selection, any disability related sickness should be discounted.
- Employers should avoid making assumptions about impairments that influence decision making improperly. For example, failing to offer a promotion to someone with a history of depression to avoid subjecting them to additional stress, maybe well intentioned, but could result in claims of direct discrimination or discrimination arising from disability.
- An equal opportunities policy that acknowledges and commits to upholding disabled workers rights will encourage openness and help avoid problems developing.
All of these steps are likely to result in disabled employees being properly supported so that their efficiency is maximised, not just through increased productivity, but by creating a better motivated and harmonious workforce.