Disability

by Kate Russell

In a nutshell

1. Disability discrimination

The Disability Discrimination Act 1995, now largely replaced by the Equality Act 2010, strengthened the rights of disabled people in many areas, including employment.

  • A person will be considered to be disabled within the meaning of the legislation if he has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to perform normal day-to-day activities.
  • It is unlawful for an employer to discriminate against a disabled person in relation to his employment.
  • Employers may have to make reasonable adjustments if their employment arrangements place disabled people at a substantial disadvantage compared with non-disabled people.
  • The legislation does not prevent an employer from appointing the best person for the job.

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2. How does disability discrimination arise?

Disability discrimination occurs for the following reasons:

  • If, for a reason related to the person’s disability, an employer treats a disabled person less favourably than he treats or would treat other people, and cannot justify this treatment
  • When an employer fails to comply with a duty to make a reasonable adjustment in relation to the disabled person.

Only a disabled person is able to claim protection under this legislation, so unless it is otherwise agreed, the starting point is to determine whether a person has a disability. In arriving at the answer, you have to consider each of the elements of the definition:

  • The existence of a physical or mental impairment
  • Whether the impairment is substantial
  • Whether the impairment is long term
  • The adverse impact on day-to-day activities.

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3. Effects of treatment and medication

Where the disabled person is having treatment or correction, you must consider what effect the impairment would have on the employee if he was not being treated.

  • This rule applies even if the measures result in the effects being completely under control or not at all apparent.
  • The exception to this is visual impairments that are capable of being corrected by spectacles or contact lenses.

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4. Pre-employment medical questions

The Equality Act 2010 bans the use of pre-employment health questionnaires except in very limited circumstances. The aim is to reduce the potential for discrimination at the application stage where it was felt that all too often unjust assessments were made based on disclosed medical conditions (especially mental health conditions) that unfairly prevented suitable applicants progressing to interview. Pre-employment health questions can be asked, but only in limited circumstances. These include

  • The employer needs to establish whether the employee is fit to undergo an assessment, or whether the employer has a duty to make reasonable adjustments in connection with an assessment
  • The employer needs to establish whether the job applicant will be able to carry out a function that is intrinsic to the job concerned
  • The employer wishes to undertake diversity monitoring
  • The employer is considering taking positive action in relation to disabled persons
  • It is a genuine requirement of the job that the employee has a particular disability.

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5. What does ‘substantial’ mean?

The adverse effect on normal day-to-day activities must be a substantial one. There are several factors to consider:

  • The time taken by a person with an impairment to carry out a normal day-to-day activity
  • The cumulative effects of an impairment
  • Environmental conditions that may exacerbate the effect of an impairment
  • How far a person can reasonably be expected to modify his behaviour to prevent or reduce the effects of an impairment

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6. Progressive conditions

A person who has a progressive condition will be treated as having an impairment which has a substantial adverse effect from the moment any impairment resulting from that condition first has some adverse effect on his ability to carry out normal day-to-day activities, provided that in the future the adverse effect is more likely than not to become substantial. Progressive conditions to which this applies include

  • Systemic lupus erythematosus (SLE)
  • Various types of dementia
  • Rheumatoid arthritis
  • Motor neurone disease

From 2005, a person with any of the following is now deemed to be disabled from the point at which diagnosis was made:

  • Cancer
  • Multiple sclerosis
  • HIV

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7. Meaning of ‘long-term effects’

For the purpose of deciding whether a person is disabled, a long-term effect of an impairment is one which has lasted at least 12 months, or where the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months or which is likely to last for the rest of the life of the person affected.

  • The effects of an impairment don’t have to be active all the time for the impairment to qualify as a disability.
  • A person who has had a disability in the past is protected from some forms of discrimination, even if he has since recovered or the effects have become less

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8. Normal day-to-day activities

Day-to-day activities cover the things people do on a regular or daily basis. Guidance is given by the courts. Their examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Not included are

  • Sports and leisure pursuits
  • Activities that are normal only for a particular person or small group
  • Activities relating specifically to a particular job

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9. Employer’s knowledge of disability

Where the disability is not obvious or the employer has no knowledge of it, it seems the employer can be liable if the disability and worker’s treatment are related.

  • You may be expected to know about a person’s disability by putting together certain relevant facts.
  • You should ensure that, where information about disabled employees may come though different channels, there is a suitable and confidential process for bringing such information together.
  • You can ask about disabilities as part of the recruitment process, provided that you don’t discriminate unjustifiably.

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10. Less favourable treatment

Discrimination arises where an employer discriminates against a disabled employee because of something arising in consequence of his disability and unjustifiably treats him less favourably than he treats or would treat others to whom the reason does not apply. From 1 October 2010 the position is simply that ‘A person (A) discriminates against a disabled person (B) if

(a) A treats B unfavourably because of something arising in consequence of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim’.

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11. Reasonable adjustments

As an employer, you are under a specific duty to make reasonable adjustments to accommodate the needs of a disabled employee. Adjustments might include

  • Adjustments to premises or equipment
  • Altering working hours and/or allowing absences
  • Reallocating duties
  • Moving the employee to a different job
  • Special training
  • Modifying testing procedures
  • Providing supervision.

It is more likely to be reasonable for an employer to have to take a step which is easy to take than one which is difficult. Factors to take into considerable include cost in relation to

  • The amount of resources (such as training) invested in the individual by the employer
  • The employee’s length of service
  • The employee’s level of skill and knowledge
  • The employee’s quality of relationships with clients
  • The level of the employee’s pay.

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12. Defence

Once it has been established that an employee has been treated less favourably for a reason arising from his disability, the court will have to consider whether the employer has a defence. The Equality Act removes the defence of justification and will only accept less favourable treatment if it is ‘a proportionate means of achieving a legitimate aim’. For example:

  • Someone who is blind is not short-listed for a job involving computers because the employer thinks blind people cannot use them. The employer makes no effort to look at the individual circumstances. A general assumption that blind people cannot use computers would not in itself be a material reason. It is not related to the particular circumstances.
  • An employee who uses a wheelchair is not promoted, solely because the work station for the higher post is inaccessible to wheelchairs, though it could readily be made so by rearrangement of the furniture. If the furniture had been rearranged, the reason for refusing promotion would not have applied. The refusal of promotion would therefore not be justified.

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13. Protection

Protection against unlawful discrimination starts at the selection stage, in other words before employment, continues all the way through employment and continues even after the termination of employment. Disabled people are protected against discrimination in the following forms:

  • Victimisation
  • Detriment arising from disability
  • Indirect discrimination, which is the application of a provision, criterion or practice in relation to a protected characteristic, in this case disability) that is disadvantageous to a particular group because a considerably smaller proportion of that group is able to comply with it
  • Harassment
  • Associative discrimination
  • Perceptive discrimination
  • Third party harassment

The Equality Act provides rights for people not to be directly discriminated against or harassed because they have an association with a disabled person. This can apply to a carer or parent of a disabled person. In addition, people must not be directly discriminated against or harassed because they are wrongly perceived to be disabled.

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14. Recruitment

Protection against discrimination starts at the recruitment stage. Employers should avoid discrimination in specifying the job, avoiding

  • Unnecessary or marginal requirements
  • Blanket exclusions that take no account of individual circumstances
  • Non-essential health requirements
  • Non-essential educational requirements
  • The Equality Act prohibits pre-employment medicals, except in certain specified circumstances.

Testing must not be discriminatory in content or application.

  • You may need to make reasonable adjustments to enable a disabled person to take or pass a test.
  • If you demand a qualification, you must be able to prove that it is necessary to do the job.
  • If you insist on a medical check for a disabled person and not others, without justification, you will probably be discriminating unlawfully.

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15. Tips to avoid disability discrimination

The guidance cannot cover every eventuality/circumstance. To avoid discrimination

  • Be flexible – consider the specific circumstances
  • Do not make assumptions – talk to each disabled person about what the real effects of the disability might be or what might help
  • Consider whether expert advice is needed
  • When planning for change, consider the needs of a range of possible future disabled employees
  • Consult government codes of practice for further guidance.

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