Disability discrimination in the workplace is prohibited by the Equality Act (2010). Our Employment Law team answer frequently asked questions about discrimination against disability at work.
You can only ask an interviewee if they have any disabilities or ill-health conditions, prior to making an offer of employment for one of the following purposes:
• Ensuring the applicant is able to complete an essential part of the role advertised.
• Enquiring as to whether the applicant requires any adjustments to be made to any interview or assessment process.
• For the purposes of equality and diversity monitoring.
• If the employer is actively trying to recruit a disabled person.
There will be some roles where having a particular disability would prevent a person from being able to complete the fundamentals of that role. This is known as an ‘occupational requirement’. Where an occupational requirement exists, an employer is able to lawfully favour a non-disabled person over a disabled person.
Examples of occupational requirements include:
• Requiring an airline pilot not to suffer from a visual impairment
• Requiring a factory worker not to suffer from any mobility. impairments that prevent them from being able to operate machinery.
• Requiring a police offer not to suffer from a cardiovascular disease which limits their capacity for exercise.
You should talk to your employee about their disability to find out how long they have been disabled and the effect this has had on their day to day activities. Ask them whether they consider that their disability is adversely impacting upon their work. If they think this is the case, ask whether there are any reasonable adjustments which could be made to help.
A disabled person as defined by the Equality Act has a mental or physical impairment which has a long term and substantially adverse impact on their ability to carry our normal day-to-day activities. With any disability, it is the effect of the impairment on the individual rather than the type of condition itself which is important. So dyslexia, for example, may or may not be a disability depending on its impact upon the individual’s day-to-day life.
Some conditions however – cancer, HIV and multiple sclerosis – are automatically treated as disabilities.
An employer has a legal duty to make reasonable adjustments to ensure that a disabled person is able to access employment in the same way as non-disabled persons and exercise their disability rights in the workplace. Examples of reasonable adjustments could include making adaptations to the physical workplace premises including the worker’s specific workstation, providing specialist equipment, providing a parking space closer to the office, allowing the worker to work flexible hours, redeploying a worker to an alternative role or providing a reader or interpreter.
An adjustment will not be a reasonable adjustment if there are genuine operational or other reasons, including financial reasons, why the business cannot accommodate it.
No, the duty to make reasonable adjustments only applies if the employer knows or ought reasonably to know that an employee has a disability. There is no duty on employers to consider the need to make reasonable adjustments for every worker and the duty only applies once your employee has informed you or you have received a Fit Note indicating that your employer may have a disability.
You should consider carefully any recommendations made by your employee’s GP, consultant or an occupational health provider but if there are genuine reasons why the adjustments recommended are not feasible for your organisation then you could offer other alternatives. We would advise you take legal advice from a disability discrimination solicitor.
The cost of implementing reasonable adjustments must be covered by the employer. Access to Work is a scheme which is provided for disabled employees to obtain funding for adjustments. An assessment is made and the employer can recover the costs of any approved equipment or the cost of other adjustments.
An employer does not have to tolerate unlimited sickness absence but in the case of a disabled employee you should ensure that you consult with your employee, take appropriate medical advice and make sure you have considered and implemented reasonable adjustments. This might include accepting increased levels of absence. Before dismissing for ill health, it is important to consult an employment solicitor to ensure that this is not discriminatory and unfair dismissal and that a fair ill health capability process has been followed.
Harassment occurs when an individual is subjected to unwanted conduct related to disability which creates an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment can take many forms and disability discrimination examples could be things that are said, written or done. It could include jokes intended as ‘workplace banter’ in a group WhatsApp chat. An employer could be found to be vicariously liable for the actions of their employees and so they must take reasonable steps to prevent harassment.
You should have a policy to make it clear to your employees that any such conduct is unacceptable and take seriously and investigate any complaints. You could also consider equalities training for staff, and particularly managers. An individual need not have a disability themselves to claim harassment.