As an employer, you need to know what amounts to a disability and what you have to do if you have a disabled employee or job applicant. Our quick guide will make sure you have covered all the bases
Employees, job applicants, contractors, agency workers and former employees who have a disability are all legally protected against unlawful discrimination.
A person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal, day-to-day activities. Normal day-to-day activities are things they regularly do. Relevant workplace activities can include concentrating, communicating with colleagues or accessing the workplace.
You should take into account the activities an employee is unable to carry out, and not what they can do, when deciding whether the employee is disabled or not.
An effect is 'substantial' if it is more than 'minor or trivial'. It is 'long-term' if it lasts more than 12 months (or the remainder of the employee's life, if shorter). Some conditions - such as sight impairment, severe disfigurements, cancer, HIV and multiple sclerosis - are deemed to be disabilities even if they do not affect the person's ability to carry out normal, day-to-day activities.
However, some conditions, such as alcoholism, drug addiction, kleptomania, hay fever and pyromania - do not qualify as a disability even if they otherwise fall within the legal definition.
Some other individuals are also protected including:
- Those with progressive conditions - even if there is currently no substantial adverse effect - if it has a long-term, adverse effect on their ability to carry out day-to-day activities.
- Those with impairments that 'go away', but are likely to recur, for example, a knee or back problem.
You are also prohibited from discriminating against or harassing an employee because of someone else's disability (for example, because they have to care for a disabled child), because of perceived disability (when it is believed someone has a disability, but in fact they don't) or because of a past disability.
Employees are also protected from any harassment and victimisation on grounds they have claimed or complained of disability discrimination.
If an employee suffers from multiple conditions, you must clarify which are deemed a disability. Otherwise you risk having insufficient information to know whether the employee is disabled, or which adjustments it is reasonable to make.
Unlawful discrimination
You unlawfully discriminate against a disabled person if you:
- Treat them less favourably because of their disability, or something arising from their disability.
- Fail to make reasonable adjustments for the employee's disability (for example, by allowing them to work from home) and this puts them at a substantial disadvantage.
You do not directly discriminate if you neither knew nor ought to have known of an employee's disability. Job applicants are not legally obliged to tell you that they are disabled. But, if you subsequently dismiss them when you find out, it is likely to be discriminatory. You may want to make non-discriminatory enquiries during your recruitment process.
Indirect discrimination
There is indirect disability discrimination when a provision, criterion or practice (such as a policy) in the workplace disadvantages disabled people. However, discrimination may not be unlawful if you can objectively justify it as a 'proportionate means of achieving a legitimate aim'. Saving costs does not justify indirect discrimination, and if there is a reasonable and less discriminatory alternative, it will be hard to argue it is objectively justified.
Discrimination can occur at every stage of employment - from recruitment to dismissal or redundancy. To avoid unlawful discrimination, you need to ensure that your procedures and policies are objective and focus on work performance and the requirements of the job.
The Employment Appeals Tribunal has ruled that employers can apply their sick pay policy to disabled employees who are absent because of their disability. So, if you normally cut the wages of people on long-term sickness absence after a given period, you can do the same with people who are disabled, even if those absences arise because of their disability.
You can avoid discrimination claims during a redundancy process by changing the way you score employees with protected characteristics to remove any substantial disadvantage to them.
There is no limit on compensation for disability discrimination, which can be awarded both for financial loss suffered as a result of the discrimination, such as loss of future earnings, and non-financial damage such as injury to feelings.