Below, our expert employment law solicitors answer employers questions on the law relating to disability at work.
Q: One of my staff keeps being late because she’s delayed looking after her disabled father. I can understand staff having problems with childminders and nurseries but this keeps happening. Do I have to put up with it?
A: If you are turning a blind eye to lateness associated with childcare but disciplining someone for being late because of a relative’s disability, you are likely to be guilty of Direct Discrimination under the Equality Act 2010. You don’t have to be disabled yourself to benefit from this protection under the Act. The wording of the Act outlaws less favourable treatment “because of” disability. That is, it is not the disabled person that has to be suffering the less favourable treatment. See our factsheet: “Is your Employee Disabled under the Equality Act?” for more information.
Q: My accounts clerk has been having difficulty reading spreadsheets and she has recently told me she has been registered partially sighted. She has been slowing up and now it seems she can only get worse. What should I do?
A: If her poor vision has been certified by a consultant ophthalmologist it would mean that she is deemed to be disabled for the purposes of the Equality Act without having to satisfy the usual definition of having an impairment that substantially and adversely affects normal daily activities. The Equality Act provides protection from various forms of discrimination and requires you to make reasonable adjustments to help her overcome any particular disadvantage she suffers at work, or provide auxiliary aids to help her do her job.
Q: One of my staff has raised a grievance complaining that I have discriminated against him due to his depression, which he says is a disability. He’s never said he was disabled and we’re all suffering from stress at work!
A: For some forms of discrimination falling under the Equality Act it is necessary for the employer to know (or should have known), or believe that someone is disabled. For example, if he has been sending in sickness certificates which state that the reason for absence is depression, then it is likely that you “ought to have known” that this might be a disability falling under the Equality Act 2010.
However, if he is disabled and you treated him unfavourably because of something arising from his disability, he would not succeed with a claim if you can show that you had no grounds for knowing about his disability. Similarly the duty to make reasonable adjustments does not arise if you don’t know someone is disabled.
Q: I’ve heard some of the lads in my workshop joking around calling each other names that could be described as “disablist.” No one seems bothered, should I make them stop?
A: You might not be aware that anyone is objecting, but even so, you run the risk of someone complaining of harassment. Harassment occurs when there is unwanted conduct that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading or offensive environment. One of your staff could have a family member with a disability and might feel that their colleagues are being abusive. In these circumstances, it is very likely that they would find this behaviour offensive. Have you got a comprehensive harassment policy? If not, please contact us to review your policies.
Q: I own a small supermarket which means all staff have to help out where needed, taking in goods, stocking shelves, operating the tills etc. One of my staff seems to be struggling with the heavy goods, what should I do?
A: I’m sure you are aware of your obligation to safeguard the Health and Safety of your staff. If any of them are disabled for the purposes of the Equality Act 2010 you have additional obligations towards them. You should speak to your staff to see if they have any particular impairment that affects them. If they do, get a medical report, so that you have a better understanding of their condition and needs.
If they are disabled you have a duty to make reasonable adjustments to the normal job requirements. This could mean doing something like removing responsibility for moving heavy goods.
The job requirements could also be indirect discrimination. This occurs where an Employer applies a provision, criterion or practice (PCP) to all staff that particularly disadvantages someone with a particular disability. There is a potential defence to this form of discrimination when the PCP is a proportionate means of achieving a legitimate aim. Whilst you only have an obligation to make reasonable adjustments when you know (or ought to know) someone is disabled, indirect discrimination can occur without that knowledge.