FAQs: Disability Discrimination for Employers

1. Can you ask a potential employee if they have a disability or ill-health condition during the recruitment process?
2. Can you choose not to employ someone with a disability due to the specific requirements of the role?
3. What should you do if an employee discloses that they consider themselves to be disabled?
4. When is a person disabled for the purposes of the Equality Act?
5. What if you cannot accommodate the adjustments your employee needs?
6. Do you have a duty to ask all of your employees if they have a disability and require any reasonable adjustments?
7. Do you have to accept a GP’s recommended adjustments?
8. Is there any financial help available to businesses to help them make reasonable adjustments?
9. Can you dismiss a disabled employee who has a lot of sickness absence?
10. What can you do to guard against a disability-related harassment claim?

Can you ask a potential employee if they have a disability or ill-health condition during the recruitment process?

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 you are actively trying to recruit a disabled person

Can you choose not to employ someone with a disability due to the specific requirements of the role?

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, you are 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

What should you do if an employee discloses that they consider themselves to be disabled?

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.

When is a person disabled for the purposes of the Equality Act?

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.

What if you cannot accommodate the adjustments your employee needs?

You have 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.

Do you have a duty to ask all of your employees if they have a disability and require any reasonable adjustments?

No, the duty to make reasonable adjustments only applies if you knows or ought reasonably to know that an employee has a disability. There is no duty on you 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 employee may have a disability.

Do you have to accept a GP’s recommended adjustments?

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.

Is there any financial help available to businesses to help them make reasonable adjustments?

The cost of implementing reasonable adjustments must be covered by you as the employer. Access to Work is a scheme which is provided for disabled employees to obtain funding for adjustments. An assessment is made and you can recover the costs of any approved equipment or the cost of other adjustments.

Can you dismiss a disabled employee who has a lot of sickness absence?

You do 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.

What can you do to guard against a disability-related harassment claim?

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. You could be found to be vicariously liable for the actions of your employees and so you 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.

For expert Employment Law advice on disability rights in the workplace, contact our disability discrimination solicitors on 01273 609911, or email info@ms-solicitors.co.uk.