Occupational Healthby Anna Harrington
Equality Act 2010 and fitness for work
The aim of the Equality Act 2010 is to outlaw discrimination against any individual due to a protected characteristic. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race and religion, sex and sexual orientation. A corner stone of the act is that employers should make reasonable adjustments to allow disabled people access and progress in employment.
The Equality and Human Rights Commission was set up to work against unlawful discrimination and promote equality and human rights. The commission also has duties to promote awareness and understanding and encourage good practice, as well as to provide advice and guidance on the law. All employers have a legal duty to comply with the law.
The act states that people should not be discriminated against when seeking employment, in employment, or engaged in occupations or activities related to work.
Who is covered under ‘disability’?
A person has a disability if they have a physical or mental impairment which has a substantial adverse long-term effect on their ability to carry out normal day-to-day activities.
There does not have to be a medically diagnosed cause for the disability. The effects of the disability need to be considered without being controlled through medication and or treatment.
Those who have had a disability in the past remain covered by the act, even if the individual has recovered. An individual who has been diagnosed with a progressive condition will be covered by the act from the moment it has an impact on day-to-day activities.
The definition includes mental functioning. Individuals with cancer, HIV, multiple sclerosis and some sight impairments are classed as disabled automatically. People with a severe disfigurement are classed as disabled automatically; this form of disability does not need to relate to their ability to carry out normal day-to-day activities, but it does need to be long-term.
Mental impairments include those that affect the senses and those which may be classed as a learning difficulty.
A substantial effect means something that is more than minor or trivial. Account needs to be taken of instances where an individual may avoid undertaking an activity due to pain, embarrassment (social and substantial) or fatigue.
Long term means
- Where the effect is likely to last for a total equalling or more than 12 months
- Has lasted for 12 or more months
- Is likely to last for the rest of that person’s life.
Day-to-day activities are those that are carried out by most men or women on a regular and frequent basis.
The act states that treatment of a disabled person may be classed as discriminatory if
- The employer treats the person unfavourably
- This treatment has arisen as a consequence of the individual’s disability
- The employer cannot show that it is a proportionate means of achieving a legitimate aim.
This applies unless the employer does not know or could not be reasonably expected to know of the individual’s disability. It is not necessary to compare the treatment of a non-disabled person with that of a disabled person.
An employer needs to consider the possibility of an individual having a disability, even if one has not been formally disclosed. The employer is required to do all they can reasonably be expected to do to find out if the individual is disabled. Issues of dignity, privacy and keeping personal information confidential must be considered when making enquiries.
An individual was dismissed due to having three months’ sick leave, with the employer being aware that the leave was mostly due to multiple sclerosis. This would amount to discrimination arising from disability. It is irrelevant whether or not other workers would have been dismissed for having the same or similar length of absence. It is not necessary to compare the treatment of the disabled worker with that of her colleagues or any hypothetical comparator.
The decision to dismiss her will be discrimination arising from disability if the employer cannot objectively justify it.
The employer is required to assess an individual’s capabilities within the framework of considering adjustments that would be required to enable the individual to perform at a level acceptable to the employee and employer.
Reasonable adjustments are about taking positive steps to allow disabled people to access employment and progress. It applies to all sizes of employer, but the term ‘reasonable’ allows for a cost benefit analysis to be considered when deciding on implementation.
Reasonable adjustments must be relevant and relate to the particular set of circumstances of each situation. In the example above, even though the employer made an adjustment to her starting work time from 9am to 9:30am, the employer could still be found to be discriminating as the reasonable adjustment does not relate to the unfair treatment, namely dismissal due to the sickness absence.
There are three areas on which the employer needs to focus when considering reasonable adjustments:
- Avoiding the substantial disadvantage where a provision, criterion or practice applied by or on behalf of the employer puts a disabled person at a disadvantage compared to those who are not disabled
- Removing or altering a physical feature or provide a reasonable means of avoiding such a feature where it puts a disabled person at a substantial disadvantage compared to those who are not disabled
- Providing an auxiliary aid or service where the disabled person, without the provision of that aid, would be put at a substantial disadvantage when compared to those who are not disabled.
The code encourages employers to meet the needs of all workers, rather than spending time and resource on establishing if an individual may be categorised as disabled. By this it means that appropriate enquiries should be made at an appropriate time to understand the possible needs of applicants and employees.
In short, the restrictions on when health enquiries can be made still allow for appropriate enquiries to enable an accessible recruitment and selection process. Any other enquires must be made after an offer of employment has been made.
When considering if adjustments are ‘reasonable’, the code suggests the following:
- How effective the adjustment would be in overcoming the disadvantage
- How practicable it is to make the adjustment
- The financial and other costs incurred by the employer
- The extent of any disruption to activities
- The extent of the employer’s financial and other resources
- The availability of financial and/or other assistance in making the adjustment
- The nature of the employer’s activities and size of undertaking.
If the adjustments are found to be ‘reasonable’, the employer has to make the changes.
Relationship between health and safety and disability legislation
A risk assessment process will be necessary to decide on the health and safety implications of the reasonable adjustments.
Consideration needs to be given to the affect on any other employees.
Example of safety issues arising from an individual’s disability:
A university student had enrolled on a BA in glass (design, manufacture and art) at a local university. This student was partially sighted and his sight was deteriorating.
As part of the course he was expected to mould glass and in particular to do hot glass blowing in the workshop, where other students were also present. He also had difficulty with stairs in that he couldn’t see the definition very well. He was quite an angry person and was having difficulty accepting his relatively new disability.
In this example the changes made were:
- White lines in places to help him navigate, particularly on the stairs
- He took part in the activities, but had a key worker with him at all times
The glass blowing remained a concern, but all others kept away when he was doing the task.
When considering reasonable adjustments, it is prudent to include, with the employee’s consent, the following people when making decisions:
- The employee
- Occupational health
- Human resources
- Line manager
- Disability advisor
- Organisations relating to the specific disability, for example the British Dyslexia Association or the Shaw Trust.
See also the Disability topic.