Below, our Employment Law solicitors answer employers’ questions on the law relating to disability at work.
No. You must not ask about health and sickness when deciding who to recruit – but you are allowed to ask questions in order to:
It is for you to show that any questions you ask are justified.
A question about the applicant’s number of sick days would not normally be justified.
If your employee is considered to be disabled as set out by the Equality Act 2010, and if you know about this, or ought to have known, then you are required to make reasonable adjustments to help your employee at work.
Your employee could be disabled if their dyslexia is so severe as to have a substantially adverse effect on their ability to carry out day-to-day activities. Reading would be a day-to-day activity as well as a work activity. If your employee has mild dyslexia this might not result in their disability being substantially adverse enough to meet this threshold.
It is sensible for you to arrange an assessment, particularly if it is unclear whether your employee is disabled under the Equality Act. It is best practice to refer employees to Occupational Health if, for example, they have been off sick from work for some time, or if they have a long term health problem as you will need to know the expected prognosis.
The Occupational Health specialist will give you advice on how to make a referral. For example, they might have a specific form for you to complete and a list of information or documents they require. It is common for Occupational Health specialists to request job descriptions.
When making a referral to Occupational Health you should obtain your employee’s written consent and also provide them with a statement of their rights.
An Occupational Health adviser might be a nurse or a doctor. They will talk to your employee about their sickness and how it affects their work. The specialist should produce a report stating whether in their opinion your employee might be disabled and what (if anything) they believe you as the employer should be doing to support your employee at work.
This depends upon why you have made the referral, but in most cases the Occupational Health adviser is likely to ask your employee about their current illness:
Yes. Employees are entitled to see the report before it is sent to you and they are entitled to suggest changes, but not insist on them. Employees can refuse to allow the Occupational Health physician to disclose their report to you, however this is rare.
You are required to make reasonable adjustments within a reasonable timescale of receiving the report.
It is usually advisable to invite your employee to a meeting to discuss the Occupational Health report and explain what you are doing to put in place the adjustments. If this is going to be a longer process then you can explain to your employee why this is the case, and try to agree timescales. Until you put in place the adjustments, your employee may need to be signed off sick or given amended duties.
Adjustments can take three forms:
Firstly, you must take reasonable steps to provide:
In those circumstances, the law requires you to “take such steps as it is reasonable” to avoid that disadvantage so that your employee can continue to work. Reasonable adjustments can therefore include:
Whether a particular adjustment is reasonable depends upon all of the circumstances.
If you are concerned that the cost of an adjustment is too high, or it would be too difficult to implement in practice, then you should seek legal advice to see whether the adjustment really is a “reasonable” one that the law requires you to make.
However, if an adjustment is reasonable then you cannot refuse to make it. If you were to refuse to make reasonable adjustments, then your employee could bring a claim for discrimination. They might also resign and claim constructive dismissal.
No, not unless you have already agreed to do so, or there is a policy in place allowing for enhanced pay. The purpose of reasonable adjustments is to allow disabled employees to be able to stay in work, it does not guarantee full pay.
If your employee’s absences are due to their disability then you might be at risk of a discrimination claim if you issue warnings. You must be able to show that any disciplinary sanctions are “objectively justified”, taking into account the frequency and duration of absences and earlier sanctions. Any employer wishing to discipline disabled employees for issues relating to their sickness should seek legal advice.
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