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Martin Searle Solicitors

FAQs: Disability

Below, our employment law solicitors answer employees’ questions on the law relating to disability at work.

    1. I have received an application form for a new job which asks me how many days’ sick I have had in the past 5 years. Is my prospective employer allowed to ask this question?
    2. Does my disability entitle me to reasonable adjustments?
    3. I am dyslexic and I am not sure whether I am protected under the Equality Act 2010? What is the test?
    4. I think I am disabled.  Should I ask for a referral to Occupational Health so I can see if I am entitled to reasonable adjustments?
    5. What is the Occupational Health adviser likely to ask me?
    6. Am I entitled to see my Occupational Health report?
    7. Occupational Health have recommended adjustments but my employer isn’t doing anything about it – what can I do?
    8. What sorts of adjustments can I expect my employer to make?
    9. Can my employer refuse to make reasonable adjustments?
    10. Does my employer have to enhance my pay if, as a result of reasonable adjustments, if I go part-time?
    11. Can my employer discipline me for my absences if I am disabled?

I have received an application form for a new job which asks me how many days’ sick I have had in the past 5 years. Is my prospective employer allowed to ask this question?

No. Employers must not ask about health and sickness when deciding who to recruit – but they are allowed to ask questions in order to:

  • Establish whether you are able to undergo an assessment, and if you are not, to decide what reasonable adjustments they can make to ensure that the recruitment process is fair.  For example, an employer can ask whether you are able to complete a written test
  • Establish that you are able to carry out the main functions of the job
  • Monitor diversity amongst the applicants
  • Decide whether to positively discriminate

It is for the employer to show that any questions they ask are justified.

A question about your number of sick days would not normally be justified.

Does my disability entitle me to reasonable adjustments?

If you are considered to be disabled as set out by the Equality Act 2010 and your employer knows about this, or ought to know, then your employer is required to make reasonable adjustments to help you at work.

For more information please see our factsheets on disability and reasonable adjustments.

I am dyslexic and I am not sure whether I am protected under the Equality Act 2010? What is the test?

You could be disabled under the Equality Act, if your dyslexia is so severe as to have a substantially adverse effect on your ability to carry out day-to-day activities. Reading would be a day-to-day activity as well as a work activity. If you have mild dyslexia this might not result in your disability being substantially adverse enough to meet this threshold.

I think I am disabled.  Should I ask for a referral to Occupational Health so I can see if I am entitled to reasonable adjustments?

It is sensible for you to have an assessment particularly if it is not clear whether you are disabled or not, under the Equality Act. An employer might also refer you to Occupational Health as a matter of best practice.  For example, if you have been off sick from work for some time, or if you have long term health problems.

An Occupational Health adviser might be a nurse or a doctor. They will talk to you about your sickness and how it affects your work. They should produce a medical report stating whether in their opinion you might be disabled and what, if anything they believe your employer should be doing to support you at work.

When your employer makes a referral to Occupational Health they should obtain your written consent and also provide you with a statement of your rights.

What is the Occupational Health adviser likely to ask me?

This depends upon why you have been referred but in most cases the Occupational Health adviser is likely to ask you about your current illness:

  • What your symptoms are
  • How long they have lasted
  • What medical attention you have sought
  • Whether you are taking any medication or receiving any treatment
  • How much longer your illness is likely to last
  • When you think you will feel able to return to work or continue working
  • Whether you feel that your employer should be doing anything to support you

It is also sensible to tell the Occupational Health adviser how your illness is affecting your ability to carry out day-to-day activities. This will lead the Occupational Health specialist to assess more accurately whether she or he thinks you are disabled.

Am I entitled to see my Occupational Health report?

Yes. As an employee you are entitled to see the report before it is sent to your employer and you are entitled to suggest changes, but not insist on them. You may refuse to allow the Occupational Health physician to disclose the report to your employer. For example, if it is factually incorrect. However, it is usually the case that adviser would check and amend.

Occupational Health have recommended adjustments but my employer isn’t doing anything about it – what can I do?

Employers are required to make reasonable adjustments within a reasonable timescale from receiving the report.

You should ask your employer for a meeting to discuss the Occupational Health report and ask them to confirm what they are doing to put in place the adjustments. If your employer is not listening to you, or if your employer is acting with undue delay, then you should raise a grievance.

What sorts of adjustments can I expect my employer to make?

Adjustments can take three forms:

Firstly, employers must take reasonable steps to provide

  •  Supporting aids to assist disabled employees
  • To change the physical features of the workplace where these place disabled people at a disadvantage
  • To make other adjustments where there is a”provision, criterion or practice” which could place you (as a disabled person) at a “substantial disadvantage”, in comparison to non-disabled employees

In those circumstances, the law requires your employer to “take such steps as it is reasonable” to avoid that disadvantage so that you can continue to work.  Reasonable adjustments can therefore include:

  •  Allocating to your colleagues any duties that you struggle to perform because of your disability
  • Changing your days or hours of work
  • Changing your place of work
    Allowing you more time to complete certain tasks or parts of your role
    Allocating other colleagues to assist you

Whether a particular adjustment is reasonable depends upon all of the circumstances.

See our factsheet on reasonable adjustments.

Can my employer refuse to make reasonable adjustments?

If an adjustment is reasonable then an employer cannot refuse to make it. It may be unreasonable if the cost is too high, or the adjustment would be too difficult to implement in practice. If you believe that your employer is refusing to make reasonable adjustments then you should raise a grievance and seek legal advice.

Does my employer have to enhance my pay if, as a result of reasonable adjustments, I go part-time?

No, not unless your employer has agreed to do this, or has a policy saying that they must do so. The purpose of reasonable adjustments is to allow disabled employees to be able to stay in work – it does not guarantee full pay.

Can my employer discipline me for my absences if I am disabled?

If your absences are due to a disability then your employer might be at risk of a discrimination claim if it issues warnings. Your employer must be able to show that any disciplinary sanctions are “objectively justified”, taking into account the frequency and duration of your absences and earlier sanctions.

To find out how we can help you with disability at work, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

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